Ng Tat Kuen v. Tam Che Fu and Others

HCPI 896/2013

[2019] HKCFI 1191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 896 OF 2013

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J U D G M E N T

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Index

Injuries, treatment & current condition	..........	5
The multipliers	..........	8
Loss of earnings	..........	9
Special damages	..........	10
Pre-trial value of care and services	..........	11
Pre-trial cost of alternative accommodation	..........	12
Future medical treatment	..........	12
Future transport cost	..........	15
Future cost of care regime	..........	15
Future cost of medical equipment	..........	17
Future cost of consumables	..........	19
Future cost of tonic food expenses	..........	21
Future cost of alternative accommodation	..........	21
Roberts v. Johnstone	..........	25
Assessment of the cost of future alternative accommodation in the present case	..........	38
Socialisation and holidays	..........	39
Cost of handyman services	..........	40
General damages for PSLA	..........	40
Loss of society and loss of services	..........	46
A summary of my award	..........	49
Final judgment, interest and costs	..........	51
Kong Hoi Lam v. Cheung Yuk Kwan & Ors.	..........	52
Appendix

1.This is an assessment of damages of the plaintiff’s claims damages for personal injuries suffered at work. The plaintiff, then aged 52, suffered an accident at work which occurred on 29 October 2010 in front of one of the retail outlets of the 3^rd defendant at Yan Ching Street, Tuen Mun, New Territories.  The plaintiff worked as a driver and delivery worker for the 1^st and 2^nd defendants. He was responsible for driving a lorry bearing registration number of JG6260.  The registered owner of this lorry was Wing Fai Transportation Company (“Wing Fai”), the sole proprietor of which was the 2^nd defendant.  The 1^st defendant is the father of the 2^nd defendant and operated the business of Wing Fai.  On 21 February 2009, the 1^st defendant signed an agreement, on behalf of Wing Fai, whereby Wing Fai would be responsible to carry out the transportation work of the 3^rd defendant.  On 29 October 2010, the plaintiff was unloading goods in the course of his employment when he was struck by a substantial quantity of goods that had fallen, and he suffered very serious injuries as a result.

2.Interlocutory judgment against the 1^st and 2^nd defendants was entered by default on 31 December 2013 for damages to be assessed and costs of the action.  The claim against the 3^rd defendant was dismissed on 26 October 2015 after trial.  The 1^st and 2^nd defendants had not obtained employees’ compensation cover in respect of their liability to the plaintiff. The Employees’ Compensation Assistance Fund Board applied to intervene and was joined as the 4^th defendant on 5 November 2015.  The 4^th defendant contested the quantum of the plaintiff’s claims but did not dispute liability.

3.A settlement has been reached between the plaintiff and the 4^th defendant. Pursuant to that settlement, the plaintiff appeared before me at the assessment of damages asserting that I ought to find that the plaintiff suffered loss and damage in the sum of $10,587,000, exclusive of interest, and net of employees’ compensation of $2,200,000 already received by the plaintiff[1], and that I should award damages to the plaintiff in that sum.  The 4^th defendant agreed to this course being taken and also agreed to pay the plaintiff’s costs of this action from and including 5^th November 2015, (including all costs reserved from and including 5^th November 2015), to be taxed on a party and party basis, if not agreed.The 4^th defendant also sought to recover those costs from the 1^st and 2^nd defendants. The 1^st and 2^nd defendants did not appear before me.  Indeed, they have not taken any part in these proceedings from the time that interlocutory judgment for damages to be assessed was entered against them.

4.The plaintiff and the 4^th defendant had been granted leave to obtain expert evidence.  The 1^st and 2^nd defendants did not avail themselves of the opportunity to adduce their own expert evidence.  I have reviewed the expert evidence adduced before me and find that there is little or no difference in the findings, opinions and recommendations of the experts which are summarised in the following table:

For the Plaintiff	For the 4th Defendant	Disagreement
Neurology[2] Dr Chan Sze Tong	Dr Edmund Woo	Nil
Orthopaedics[3] Dr Ko Put Shui Peter	Dr Chun Siu Yeung	Dr Ko: 100% Permanent Impairment of the Whole Person (“PIWP”) Dr Chun: 90% PIWP
Urology[4] Dr Kwok Tin Fook	Dr George C.G. Koo	Nil
Physiotherapy[5] Mr Stephen K.S. Wong	None appointed	Nil
Occupational Therapy[6] Mrs Alice Tsang	Mrs Shelley M. Chow	Disagreements will be addressed later in this judgment

5.The Revised Statement of Damages (“the RSOD”)[7] and the 4^th defendant’s Answer[8] both adopted an assumed date of 28 October 2017 as the date of the assessment of damages, which the plaintiff has invited me also to adopt for ease of calculation, and to save the extra costs of updating his RSOD.  I acceded to the plaintiff’s request.

6.The plaintiff was called to give evidence and he adopted his witness as his evidence in chief. He was not cross examined by the 4^th defendant. I find him to be credible and I accept his evidence in its entirety.

7.After hearing further submissions, I reserved my judgment until after I had received a revised opening from the plaintiff. This was duly submitted and served.

Injuries, treatment & current condition

8.The plaintiff suffered disastrous injuries to his cervical spine.  He suffered a fracture of the C7 lamina, subluxed facet joints at the C5/6 and C6/7 levels, and spinal cord oedema from C3/4 down to C7/T1.  Following the diagnosis of fracture dislocation of cervical spine with lower limb paraplegia, he was first treated with Halo immobilization that was followed by an operation of fracture fixation, decompression and instrumentation on 4 November 2010. Bilateral shoulder and elbow flexion power was normal while all finger movements were weakened.

9.The complications experienced by the plaintiff in his treatment and progress included cardiac arrest for 1 minute on 6 November 2010; pneumonia; neurogenic shock; hyperglycaemia; alcohol-related deranged liver function, and gapping surgical wound that required 2 debridement operations. All these were treated successfully with, inter alia, a tracheostomy, antibiotics and various types of medication.

10.He was transferred to the SAHK Jockey Club New Page Inn (“SAHK”) on 4 July 2011 where he received regular rehabilitative training.  Clean intermittent catheterisation was done for him regularly by the SAHK nursing staff.  With continuous training, his hand function and upper limb strength improved.  He was discharged at the end of November 2011 to his current home, which is a 300 square foot compassionate housing unit at Yau Oi Estate granted to him by the Housing Authority.

11.At the SAHK, the plaintiff was diagnosed to be suffering from diabetes mellitus for which he was kept on medication.  While at SAHK, he developed ptosis and was returned to the Tuen Mun Hospital where a diagnosis of myasthenia gravis[9] was made.  He was treated with medication.  About a year after he returned home, his myasthenia gravis worsened and he had dysphagia[10] and upper limb weakness so much so that he had to be tube fed.  He was re-admitted to the Tuen Mun Hospital where he stayed for 3 weeks for medical treatment.  The medication for myasthenia gravis was effective and this condition is now maintained with a small daily dose of corticosteroid with no relapse.

12.Since being discharged home, there was no one available to perform catheterisation for him so his urinary care regime was changed to an indwelling catheter, changed once every 2 weeks by a visiting community nurse.  The plaintiff has employed various domestic helpers for his care and the helpers cleared out the urine bags and performed joint ranging and massage for him daily.  They also performed housework and accompanied him for outings to the nearby park and for follow up consultations.

13.The plaintiff attends follow up treatment in the following specialities: orthopaedics, neurology, medicine, ophthalmology, dermatology, podiatry, psychiatry and a combined clinic.  He was not attending any urological follow up, and the occasional cloudy urine detected by the helpers was usually cleared by the prescription of antibiotics with no need for hospital admission. Urinary tract infection became very infrequent with the indwelling catheter.

14.The plaintiff can eat a normal diet after food was prepared for him.  With his limited use of the right hand, he can feed himself, hold a glass of water, brush teeth, wash face, control the television and his electric wheelchair when everything is prepared for him.  The left hand has no useful function while the lower limbs are totally paralysed and without voluntary movement, except for involuntary occasional spasms.  His truncal balance is poor and he can only sit with strong support or when secured with a safety belt.  He cannot transfer from chair to bed and cannot turn himself in bed.  His breathing is compromised due to the spinal injury.  There is no prospect of any further recovery.

15.The various experts have assessed the plaintiff to have suffered impairment of the whole person ranging from 90% to 100%, whereas they all agree that he has suffered 100% loss of earning capacity.  For the rest of his life, he will remain totally incontinent, wheelchair bound, paraplegic with only limited use of the right hand, but he is cognitively sound.  He will never be able to lead an independent life, let alone being able to work.  The amount of sick leave he has received is irrelevant as he has lost all capacity to work.

The multipliers

16.According to the neurological experts, the plaintiff has a remaining life expectancy of 14.4 years from 26 January 2016 but there will be a 25% diminution in life expectancy, owing to the co-morbid diseases, to 10.8 years or 129.6 months.  This was asserted by the 4^th defendant in its Answer[11] and is accepted by the plaintiff.

17.Since the assumed trial date is 28 October 2017, this period will commence 21 months after the date of the report.  Deducting the 21 months from the projected 129.6 months of life expectancy produces a remaining life expectancy of 108.6 months or 9.05 years.  Table 28 of The Personal Injury Tables Hong Kong 2016[12](“the Chan Tables”) shows that, at a 1% discount rate for needs lasting less than 10 years, the multiplier for a term certain of 9 years is 8.61.  This was asserted by the 4^th defendant[13] in its Answer and is accepted by the plaintiff.

18.Turning to the assessment of the working life multiplier, I note that the plaintiff was born on 10 October 1958 and was aged 52 at the date of the accident. By the assumed date of trial, he would be aged 59.  I find that he would have retired by the age of 65 but for this accident.  Table 9 of the Chan Tables shows that, at a 1% discount rate for needs lasting less than 10 years, the appropriate working life multiplier is 5.71.  The 4^th defendant has agreed in its Answer[14] that this is the appropriate working life multiplier to adopt.

19.I find that the appropriate full life and working life multipliers to adopt in this case are 8.61 and 5.71 respectively.

Loss of earnings

20.The plaintiff worked as a driver and delivery worker for the 1^st and 2^nd defendants and used to earn a total of $29,350 per month consisting of daily pay, sale of collected used electrical appliances, tips and staircase fees[15]. This is agreed by the 4^th defendant.

21.At the assessment, the plaintiff did not pursue his pleaded claims of projected further increases in his earnings.

22.I find that the plaintiff’s pre-trial loss of earnings was $29,350 a month which, applied to the pre-trial period of 84 months, produces a sum of $2,465,400.  His loss of MPF for the same period, based on his basic salary of $9,100 a month, amounts to $38,220 ($9,100 x 5% x 84).  I find that the plaintiff has suffered total pre-trial loss of earnings of $2,503,620 and I award this amount to him as damages for such loss.

23.He is totally unemployable.  I find that the plaintiff has suffered total future loss of earnings of $2,042,239 ($29,350 x 12 x 5.71 = $2,011,062 plus loss of MPF at $9,100 x 5% x 12 x 5.71 = $31,177, rounded off) and I award this amount to him as damages for such loss.

Special damages

24.Receipts for the treatment from the public sector in the total sum incurred of $95,144 have been agreed by the 4^th defendant[16].  I award this sum as pre-trial medical expenses and the further sum of $20,000, for the traditional Chinese medical treatment that he has received.  I award the total sum of $115,144 under this head of claim for pre-trial medical expenses.

25.The find that the plaintiff has incurred the total sum $26,419 as travelling expenses during the pre-trial period[17] and I award this as damages for pre-trial travelling expenses.

26.The claim for tonic food and nourishing soup are agreed by the 4^th defendant in the sum of $30,000[18]. I find that he has reasonably incurred this expense and I award this sum as special damages to the plaintiff.

27.The cost of aids and equipment that were purchased for the plaintiff in the total sum of $153,860, which are supported by receipts, has been agreed by the 4^th defendant[19].  I find that he has reasonably incurred this expense and I award this sum as special damages to the plaintiff.

28.The cost of medical and non-medical consumables in the total sum of $91,280 has been agreed by the 4^th defendant[20]. I find that he has reasonably incurred this expense and I award this sum as special damages to the plaintiff.

Pre-trial value of care and services

29.Although the plaintiff claimed $598,000 as the value of the services provided by his sisters[21], claiming $6,000 a month for a total of 37 months during the time when he was in hospital or at the SAHK, and, thereafter, at $8,000 for the balance of the pre-trial period, he is willing to limit his claim to $2,000 per month for these services, as offered by the 4^th defendant, on the basis that his sisters were only playing a supplemental role: before his discharge from hospital, he had 24 hour nursing care in the institutions and, after his discharge, he had the services of 1 or 2 domestic helpers.  I find and award the sum of $168,000 ($2,000 x 84 months) as the value of the pre-trial care and services received by the plaintiff.

30.I find that, since his discharge from SAHK, the plaintiff has been mainly taken care of by full time domestic helpers.  He also enlisted the services of escort/care service providers to accompany him to attend follow up treatment and to attend to him in case of emergencies[22]. The expenses incurred, supported by employment contracts and receipts[23], have been agreed by the 4^th defendant[24] at the claimed amount of $360,986.  I find that he has reasonably incurred these expenses and I award this amount to him as the cost of the pre-trial care and services received by the plaintiff.

Pre-trial cost of alternative accommodation

31.The plaintiff used to live with his wife and daughter in a public housing estate flat which he had purchased.  A year after the accident, his wife divorced him and part of the divorce settlement was the transfer of the flat to her.  He had nowhere to live when he was discharged from SAHK.

32.Compassionate housing was granted to him and he moved into his current flat of about 300 square feet from the end of November 2013[25].  Approximately $70,000 were spent in adapting the flat to make it suitable for his use and to furnish it for him and his domestic helpers.  However, the plaintiff is willing to limit his claim to $50,000 as offered by the 4^th defendant[26].  I find that he has reasonably incurred this expense and I award this sum as the cost of furnishing and adapting his accommodation.

Future medical treatment

33.As he is paraplegic, the plaintiff needs to be monitored and treated by different specialists.  The experts have little disagreement about what is necessary. The only disagreement between the parties is whether such treatment should be obtained in the private or the public sector.  The plaintiff has been receiving suitable and appropriate treatment in the public sector, with little or no complaint from the plaintiff.  However, his physiotherapy and occupational therapy treatments have stopped and he does not have regular follow up urological treatment.

34.The plaintiff has no objection to continuing his medical treatment at the public hospitals and clinics where such treatment is offered since he has by now grown very accustomed to their services.  He accepts the sum of $8,610 as damages for the cost of regular medical consultations[27] as offered by the 4^th defendant. I had observed in Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd. (in liquidation) HCPI 913/2011, 17 July 2015 that:

“Future medical expenses

64. If a plaintiff evinces a genuine intention to seek treatment from private doctors or from a private clinic or hospital, the court should award damages based on the cost of such treatment, unless there was good reason why he or she should obtain the reasonably needed treatment from the Hospital Authority. A good reason could include the unavailability of the needed treatment in the private sector. Another good reason could be the successful treatment received by the plaintiff in the past from the Hospital Authority which it would be beneficial for him to continue to receive; for example, a good rapport established with a treating psychiatrist at a facility run by the Hospital Authority ought to be continued. Absent good reason, the court should not transfer the liability of the tortfeasor to pay for such treatment onto the shoulders of the Hospital Authority which is already over burdened by the huge and ever growing demand for its services by the citizens of our good city. Indeed, the long period of time it would take to obtain the needed treatment from the Hospital Authority is a good reason to award damages based on the cost of the needed treatment in the private sector. Provided that the treatment is reasonably needed, the plaintiff’s choice to seek such treatment in the private sector cannot be equated with a failure on his part to mitigate his loss by seeking the needed treatment from the Hospital Authority. The English Court of Appeal in Peters v. East Midlands Strategic Health Authority[28] decided that no question of mitigation of loss arose from the plaintiff’s decision not to rely upon medical services provided by a public authority. Dyson L.J., as he then was, giving the judgment of the Court, stated[29] by way of conclusion:

“We can see no reason in policy or principle which requires us to hold that a claimant who wishes to opt for self-funding and damages in preference to reliance on the statutory obligations of a public authority should not be entitled to do so as a matter of right.”

In this case, however, the plaintiff wishes to continue to receive his medical treatments in public hospitals and clinics.

35.I find on the evidence that, since the plaintiff’s discharge from SAHK, his joints have become less flexible and contractures are worsening[30].  The sole expert physiotherapist has recommended that he be given at least weekly physiotherapy treatment at $800 to $2,000 per session[31] in the private sector for life.  I find that it is reasonable for the plaintiff to receive physiotherapy at least once a week for the rest of his life at a median cost of $1,400 per session per week and I award him damages of $626,808 ($1,400 x 52 weeks x 8.61) to cover the future cost of the same. I also award him damages of $2,620 ($100 + $60 x 42) to cover the cost, in the public sector, of 42 future sessions of occupational therapy[32] that was recommended for him.

36.I also award to the plaintiff damages to cover the cost of future urological follow ups and medication, as per the joint recommendations of Dr Kwok and Dr Koo[33], in the private sector, in the sum of $259,358.  The public sector has not provided him with such service in the past.

Future transport cost

37.That the plaintiff requires additional sums to meet his post-accident travel needs is not disputed by the 4^th defendant. The expert occupational therapists have recommended $3,000 per month for additional transport costs[34] on account of the fact that the plaintiff will have to take more Rehabus and wheelchair accessible taxis to attend follow up treatment and for recreational and social purposes. This claim has been agreed by the 4^th defendant at $309,960[35].  I find that it is reasonable for the plaintiff to incur these expenses and I award him damages in the sum of $309,960[36] ($3,000 x 12 x 8.61) for future transport costs.

Future cost of care regime

38.As I am prepared to award to the plaintiff the future cost of engaging 2 domestic helpers, the role of the sisters will continue to be assistive and supervisory. I award $2,000 a month as the future value of their service and I assess and award to the plaintiff damages in the sum of $206,640 ($2,000 x 12 x 8.61), which the 4^th defendant has agreed[37], under this head of claim.

39.With the exception of Mrs. Tsang, the plaintiff’s expert occupational therapist, all the experts are agreed that the plaintiff needs to be looked after by 2 domestic helpers as he needs round the clock assistance. Although he can do some things by himself, he can only do so after his helper brings him the item he needs to use, for example, the television remote control needs to be brought to him.  There are also the physically demanding tasks of transferring, cleaning, bathing and turning him in his bed at night.

40.Mrs Tsang is of the opinion that the employment of a health care assistant or a personal care worker and 1 domestic helper is the better option[38].  Bearing in mind that, with 2 domestic helpers, the plaintiff will have round the clock help from one or other of the helpers, the plaintiff is willing to replace the health care worker with a second domestic helper.

41.A domestic helper currently costs $4,210 a month and this is agreed by the 4^th defendant, who has offered a total sum of $1,173,371 as the future cost of employing 2 domestic helpers for life over the agreed multiplier period of 8.61 years[39].  This works out to be around $11,350 a month for each helper and is more than what the plaintiff used to, and is still, paying for his helpers.  The plaintiff finds such an offer acceptable.

42.On top of the basic cost of the 2 domestic helpers, the 4^th defendant has also agreed that the domestic helpers be given training by nursing professionals at $3,720 per annum, as recommended by the occupational therapy experts[40], at a total cost of $32,029.  The plaintiff will also enjoy the nursing service that he requires for changing his catheter once every 2 weeks, for the rest of his life, which is agreed at $138,793[41]. Personal emergency link service, for the rest of his life, is also agreed at $11,882[42].

43.On the above basis, the cost for the plaintiff to be provided with services by his sisters, care and attention from 2 domestic helpers, catheter changing services, and emergency link service amounts to the total sum of $1,562,715[43] which I award to the plaintiff.

Future cost of medical equipment

44.The occupational experts have set out a list of 21 items of equipment which the plaintiff will need for his long term care[44]. In the table below, the plaintiff adopts the models recommended by Mrs. Chow, whose recommendations I accept.  Since items of equipment cannot be purchased partially, the items are rounded up to whole numbers to ensure that there is no under provision.

The cost of the same is set out as follows:-

Item	Cost
Stand up power wheelchair $25,8000, 2 units	$51,600
Maintenance at 30% of cost	$15,480
Manual wheelchair $12,800 3 units	$38,400
Maintenance at 30% of cost for 2 units	$7,680
Desk top for wheelchair $320, 2 units	$640
Wheelchair cushion $2,500, 3 units	$7,500
Cushion covers $1,000 per annum, 9 units	$9,000
Safety harness $230, 3 units	$690
Portable folding ramp $1,200, 2 units	$2,400
Hospital bed $12,800, 2 units	$25,600
Maintenance at 30% for 1 unit	$3,840
Anti-decubitus mattress $1,580, 3 units	$4,730
Maintenance at 20% of cost	$948
Overbed table $600, 2 units	$1,200
Movable hoist $15,000, 2 units	$30,000
Maintenance at 30% of cost	$9,000
Commode chair $11,800, 3 units	$35,400
Grab rails	Not provided
Drop down grab rails	Not provided
Urinal with lid $30, 18 units	$540
Bilateral ankle-foot-orthosis $680, 3 units	$2,040
Paddle splints $290, 9 units	$2,610
Ipad/tablets	Not provided
Exerciser $2,280, 2 units	$4,560
T-shaped immobilizer $304, 5 units	$1,520
Pulley exerciser set $110, 3 units	$330
Total	$255,708

45.The 4^th defendant has offered the higher sum of $259,667[45] in their Answer.  However, I shall award the sum that the plaintiff now claims for the cost of medical equipment in the sum of $255,708.

Future cost of consumables

46.The Plaintiff is a tetraplegic with limited use of his right hand. He suffers from double incontinence and requires a substantial amount of consumables in order to maintain his personal hygiene and for him to enjoy a reasonable quality of life.  The experts have put forward 36 items of recommended consumables[46].

47.In the table below, the plaintiff adopts the consumables recommended by Mrs. Chow, whose recommendations I accept. The cost of providing the same to the plaintiff for the rest of his life is set out below as follows:-

Item	Cost
Foley catheter, $50, 26 per annum x 8.61	$11,193
Water $80 for 20, 26 per annum x 8.61	$895
Syringe, $350 for 100, 52 per annum x 8.61	$1,567
Basic dressing pack, $5.50, 26 per annum x 8.61	$1,231
KY lubrication jelly, $2, 26 per annum x 8.61	$448
Sterets tisept sachets, $2.80, 26 a year x 8.61	$627
Urine bag, $3.60, 52 per annum x 8.61	$1,612
Urine bag hanger, $5, 5 per annum x 8.61	$215
Sterile disposable gloves, $5, 26 per annum x 8.61	$1,119
Enemas $2.6, 15 a month x 12 x 8.61	$4,029
Disposable diapers $3.92, 7 per week for 8.61 years	$12,285
PE gloves, $30 per month for 8.61 years	$3,100
Powder free surgical gloves, $90 per month for 8.61 years	$9,299
Antiseptic/disinfectant, $110 per 6 months for 8.61 years	$1,894
Antiseptic hand lotion, $56, 3 per annum x 8.61	$1,446
Alcohol pads 8 cents, 15 a day for 8.61 years	$3,771
Underpads, $3.85, 2 a day for 8.61 years	$24,198
Micropore, $4.16 per week for 8.61 years	$1,863
Waterproof bed sheet, $50, 3 per annum x 8.61	$1,292
Barrier cream, $50 per month for 8.61 years	$5,166
Sorbaderm spray, $130 per 2 months for 8.61 years	$6,716
Vaseline lotion $23 per month for 8.61 years	$2,376
Tissue, $28 per 2 weeks for 8.61 years	$6,268
Wet wipes $20, 6.5 per month for 8.61 years	$13,432
Menalind $77 monthly for 8.61 years	$7,956
Swashes disinfectant spray $28 a month for 8.61 years	$2,893
Face masks, $7 per day for 8.61 years	$21,999
Blood glucose test strips, $4.60 per day for 8.61 years	$14,456
Microlet lancets $0.68 per day for 8.61 years	$2,137
Beaker with straw, $120 per annum x 8.61	$1,033
Applicator sticks $5.50 per annum x 8.61	$47
Cotton wool balls $3, 10 a year x 8.61	$258
Sterile gauze $45, 2.5 per annum x 8.61	$968
Wound dressings $235, 4 a year x 8.61	$8,093
Total	$175,882

48.The 4^th defendant has by their answer have only offered $156,348.15[47] as they have not allowed blood glucose test strips and the microlet lancet.  These 2 items are required to monitor the plaintiff’s diabetes mellitus and, although recommended by the experts, their cost should not be borne by the defendants.  Accordingly, I award the plaintiff the total amount of $156,348 (rounded off) as the cost of future consumables.

Future cost of tonic food expenses

49.Future tonic food is claimed at $2,000 a month.  As no expert has recommended this item, the plaintiff no longer pursues this claim.

Future cost of alternative accommodation

50.The plaintiff’s current flat is not suitable for him because it is too small to accommodate him, his 2 helpers, and all the aids and equipment that he requires.  The occupational therapy experts are agreed that he should be provided with alternative accommodation.

51.A suitable flat would be one with a minimum of 796.24 square feet usable space, according to Mrs Tsang, and 591.8 square feet according to Mrs Chow[48].  I would be willing to make an award for this head of claim by reference to the rental cost of accommodation of a flat offering usable space of about 700 square feet, being the median of the 2 sizes recommended to the plaintiff.

52.A recent internet search suggests that properties in the Tuen Mun area, which meet this requirement, are asking rentals ranging from $12,000 to $18,000 per month, while the sale price of such properties ranges from $5 million to $9 million. 

53.It is common ground between the plaintiff and the 4^th defendant that this head of claim ought to be assessed by reference to the cost of rental rather than the purchase cost of suitable accommodation.

54.In Ng Kwok Wing v Lau Ping Kwan & Ors. [1996] 4 HKC 667, HCPI 1013/1995, 23 May 1996, Cheung J (as he then was) agreed with an assessment based on the rental difference where the plaintiff had lived in rented accommodation and, because of his disability caused by the accident complained of, he had to move to more expensive rented accommodation that was suitable to his needs.  He said, at p.689:

“The recovery of rental difference was the approach adopted in two cases, namely, Leung Sai Kui v F Zimmern & Co (A 1151/85, unreported) and Li Tin Yau v Leung Chi Tai (A7524/85, unreported). The approach adopted in these two cases was correct because the plaintiffs were living in rental accommodation and because of the disability they were required to move to another accommodation with a higher rental.”

55.Cheung J also followed this approach a year later in Lai Chi Pon v Toto Steel & Iron Works Ltd & Ors.,HCPI 1149/1995, 18 July 1997. In that case, the plaintiff (who became an incomplete paraplegic), his wife and his daughter lived, with his father, in a flat owned by his father.  Prior to the accident, the plaintiff paid a monthly sum of $1,000 to his father as rental, but he intended, eventually, to buy a property for his own family.  The learned judge awarded damages for alternative accommodation by deducting notional rental which he assessed, as follows, at §49:

“… in this case I would adopt the previous decisions of Leung Sai Kuiand Li Tin Yauin which the court allowed the difference in the rental of the two accommodations. In this case, the Plaintiff stated that he would eventually purchase their own property and would pay about $3,000 by way of mortgage repayment. I would adopt the $3,000 as the notional rental which has to be deducted from the current rental of a 860 sq ft flat in Whampoa Garden. The rental is about $25,900 per month. The amount recoverable is ($25,980 - $3,000) x 12 x 15 = $4,136,400.”

He added to that amount, management fees and rates, and applied an appropriate multiplier to assess the future cost of accommodation.  He also allowed expenses relating to legal costs of tenancy agreement, agent’s fees and stamp duty, and applied an appropriate multiplier to assess those future costs. He also awarded removal costs in a lump sum. 

56.In the earlier decision of Leong J, as he then was, in Choi Mei Ho v. Chung Chiu Ying t/a Kin Kee & Ors., HCPI 784/1995, 20 March 1997, the plaintiff, a complete paraplegic, had been living in a village house provided free for her by her relative in the United States but she decided to move to and live in Shenzhen where she could engage a nurse and a maid at a cheaper rate.  She had no intention to own a property.  The learned judge awarded her the full cost of renting premises in Shenzhen and, in §28, stated:

“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.”

57.In Ta Xuong v. The Incorporated Owners of Sun Hing Building HCPI 496/1995, 30 October 1997, Seagroatt J also made an award based on the increased cost of rental of suitable premises and decided, in §69, “that the only fair way of dealing with this head of claim, is by reference to the rental which will have to be paid, less the notional rental value of the Plaintiffs’ existing home.”  The learned judge adopted the same approach in Chan Yuk v. Dragages Et Travaux Publics (HK) Ltd. & Ors. [2000] 2 HKLRD 795, HCPI 1066/1998, 2 February 2000 at §32 of his judgment.  His award for the future cost of accommodation was upheld by the Court of Appeal [2000] 3 HKLRD 1, CACV 89/2000, 28 June 2000.

58.In Lily Tse Lai Yin & Ors. v. The Incorporated Owners of Alfred House & Ors. HCPI 828/1997, 17 September 2001, Suffiad J accepted, in §85, 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).”

59.The measure of damages based on the differential in the rental between the existing accommodation and the alternative accommodation was also adopted by Deputy High Court Judge Woolley in Li Xiao You v. Fugro Geotechnical Services (HK) Ltd & Ors. HCPI 1287/1999, 3 May 2002 (at §17), by Suffiad J in Fung Kwok Ki v Wing Sang Construction Co Ltd & Ors. HCPI 757/2002, 1 August 2003 (at §§75-78) and by Poon J, as he then was, in Cham Cheung Sing v. Yung Pak Wa & Ors. HCPI 206/2003, 20 June 2007, [2007] 3 HKLRD 33 (at §§115-116).

60.In the earlier decision in Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & Ors.HCPI 658/2000, 7 January 2002, the plaintiff, who was paraplegic, moved from the family’s public housing unit to private accommodation that was more suited to her needs after the accident.  Jackson J awarded damages for alternative accommodation by adding up:

(a)   the rental of the new accommodation less her estimated future contribution towards her own accommodation had the accident not occurred; and

(b)   the legal costs of tenancy agreement, agency fees and stamp duty;

and applied appropriate multipliers to the above amounts to produce his award for suitable alternative accommodation.  He also awarded a lump sum amount that was agreed as the costs of adaptation.  He made the above awards as he was unable to accept the 3^rd defendant’s argument, based on the English Court of Appeal decision in Roberts v. Johnstone [1989] QB 878, that the plaintiff should purchase new premises at a cost of $4,400,000.00, that the cost of the rental of the pre-accident premises (applying a multiplier of 18) of $432,000.00 should be deducted from that sum, and that the annual cost of providing the resulting capital sum of $3,968,000.00, at 2% per annum over the plaintiff's lifetime, was the sum which the 3rd defendant should pay. Jackson J stated, in §67, that he could not accept this submission because “the fact of the matter is that there is no saving, (and therefore there should be no deduction in respect of it), because the rent for the old premises still has to be paid by the plaintiff's parents and siblings and, applying the multiplier, which I consider to be appropriate, of 20, the cost of renting the premises at Whampoa Garden is still cheaper than buying it or its equivalent.”

Roberts v. Johnstone

61.In Ng Kwok Wing v Lau Ping Kwan & Ors., Cheung J agreed with an assessment based on the rental difference where the plaintiff had lived in rented accommodation before the accident and, because of his disability caused by the accident complained of, he had to move to more expensive rented accommodation that was suitable to his needs. However, he did not adopt this measure, in the case before him, because the injured plaintiff already owned his own property before the accident and intended to purchase a property that was more suitable for him. Attempts to look for alternative rental accommodations had been unsuccessful because landlords were reluctant to alter their premises to meet his needs.  Cheung J held that where it was the plaintiff’s express intention to purchase a new property (which was not a far-fetched idea in the case before him as the plaintiff and his wife already owned a property of their own) and suitable rented accommodation to meet the plaintiff’s needs would be difficult to obtain in the open market, it would be wrong to adopt a rental differential approach.

62.In Roberts v. Johnstone [1989] QB 878, the English Court of Appeal held that:

(1)   the damages to be awarded in respect of the purchase of special accommodation necessitated by a plaintiff's injuries should not be the net capital cost of the purchase, i.e. the difference between the value of the new or adapted accommodation over the value of the existing home in its existing state, but the additional annual cost over the plaintiff’s lifetime of providing that accommodation;

(2)   such annual cost was to be taken as 2 per cent of the net capital cost which, if necessarily expended, was not to be reduced by reason of any element of betterment not required to meet the plaintiff’s needs;

(3)   in addition, damages amounting to the full capital cost of any conversion works necessary to adapt a property for the plaintiff's needs were to be awarded, save in so far as they enhanced the value of the property.

63.The rationale behind this decision, that the net capital cost of the purchase should not be recoverable as damages, is to prevent a windfall to the estate of the plaintiff after his death. The full cost is only recoverable in respect of the adaptations that are needed to be made to the accommodation, to the extent that they do not increase the value of the property. The latter eventuality would not usually arise since adaptations of premises to enable their use by disabled persons are unlikely to add value to the property, and may even diminish the value of the property.

64.Chapman v. Lidstone unreported, 3 December 1982[49], is an example of the former practice of awarding interest at a rate which would allow the plaintiff to borrow in order to pay for the required accommodation.  The Court of Appeal inRoberts v. Johnstone stopped this practice because, the adaptation of a high multiplier by reason of the young age of the severely disabled plaintiff could result in an award which could easily exceed the net capital cost of acquiring suitable accommodation. Indeed, in Roberts v. Johnstone, the chosen multiplier of 16, when applied to the then mortgage rate of 7%, produced an award that was 112% of the net capital cost of acquiring suitable accommodation. Instead of the mortgage rate of 7%, the Court of Appeal adopted a rate of 2%, based on the decision of the House of Lords in Wright v. British Railways Board [1983] 2 AC 773.  The House of Lords had adopted this rate, being the then return, net of inflation and net of tax, on government stock which was considered a risk free investment, as the rate of interest on damages for pain suffering and loss of amenities, and other non-pecuniary loss, in personal injury claims.  The true measure of the plaintiff’s future expenditure would be to award interest at a rate which would allow the plaintiff to borrow the amount of money that was required to pay for suitable accommodation: however, if this measure produced an award that was greater than the purchase price, another measure had to be selected. The measure that was selected in Roberts v. Johnstone was not the cost to the plaintiff of borrowing the amount that was required to pay for suitable accommodation, but the return to the plaintiff, net of inflation and net of tax, if he had, notionally, invested the same amount in risk free investments. In Roberts v. Johnstone Stocker LJ said[50]:

“Lord Diplock was in these passages concerned with the appropriate interest rates for non-economic loss, and the reasoning may therefore be said to be inappropriate to economic loss such as the notional cost of mortgage interest on acquired property. It seems to us, however, that where the capital asset in respect of which the cost is incurred consists of house property, inflation and risk element are secured by the rising value of such property particularly in desirable residential areas, and thus the rate of 2 per cent. would appear to be more appropriate than that of 7 per cent. or 9.1 per cent., which represents the actual cost of a mortgage loan for such a property.

We are reinforced in this view by the fact that in reality in this case the purchase was financed by a capital sum paid on account on behalf of the defendants by way of interim payments, and thus it may be appropriate to consider the annual cost in terms of lost income and investment, since the sum expended on the house would not be available to produce income. A tax-free yield of 2 per cent. in risk-free investment would not be a wholly unacceptable one.” [Emphasis added]

65.Cheung J applied the Roberts v. Johnstone method in assessing the claim for alternative accommodation in Ng Kwok Wing v Lau Ping Kwan & Ors.However, he adopted the rate of 1.2% as the rate of return on investment, which he applied to the net capital cost ($3,520,000), producing the multiplicand of $42,240 to which he then applied his chosen multiplier of 22 to produce an award of $929,280 ($3,520,000 x 1.2% x 22). This award was only about 26.5% of the net capital cost of $3,520,000. Ng Kwok Wing v Lau Ping Kwan & Ors.had been decided on 23 May 1996.  Some months earlier, on 30 October 1995, Cheung J had held in Chan Pui Ki v. Leung On, HCA 2006/1992, that the net rate of return was 1.2%. His decision in Chan Pui Ki v. Leung On was overturned by the Court of Appeal on 19 July 1996, which reaffirmed the conventional discount rate of 4.5% set in Cookson v. Knowles [1979] AC 556.

66.The decision in Roberts v. Johnstone had the unfortunate effect of reducing the award for suitable accommodation in England to about 30% of the capital cost of the new accommodation, thus forcing plaintiffs to resort to the other awards of damages made in order to fund the cost of the needed accommodation. Indeed, the award in Ng Kwok Wing v Lau Ping Kwan & Ors. was only about 26.5% of the net capital cost of the required accommodation. For this reason, the Roberts v. Johnstone method of assessing this head of claim has been the subject of much criticism[51].

67.Matters improved, with the decision of the House of Lords in Wells v. Wells [1999] 1 AC 345, in 2 ways: firstly, multipliers were increased by reason of the substitution of the Cookson v. Knowles [1979] AC 556 discount rate of 4.5%, net of inflation and net of tax, by a discount rate of 3%, net of inflation and net of tax; and secondly, the award of 2% of the net capital cost of acquiring suitable premises, based on Wright v. British Railways Board [1983] 2 AC 773, to which the chosen multiplier was applied to produce this award, was increased to an award of 3% of the net capital cost, the 3% being based on the discount rate[52], to which the chosen, increased multiplier, would be applied. Applying the increased multiplier to the 3% rate could increase the award for suitable accommodation to 80% or more of the capital cost of the new accommodation for young claimants requiring special accommodation for life[53].

68.In England, the discount rate is currently set by the Lord Chancellor under the provisions of the Damages Act 1996. He set a single discount rate of 2.5% in 2001. This had the effect of reducing the award for suitable accommodation to about 70% of the capital cost of the new accommodation for young claimants requiring special accommodation for life[54].

69.The Law Commission considered the many criticisms that had been made of the Roberts v. Johnstone method of assessing this head of claim but was unable to formulate an acceptable solution. It recommended that the Roberts v. Johnstone method be retained[55].

70.In February 2017, the discount rate was reset by the Lord Chancellor. Again, the Lord Chancellor decided on having only a single discount rate and, following Wells v. Wells, set a negative rate of -0.75%, effective from 20 March 2017. Although this caused much consternation amongst insurers, the Lord Chancellor had little choice in the matter, given the ultra low returns of Index Linked Government Stock (“ILGS”) upon which the discount rate was based.

71.Applying this negative rate of return to the Roberts v. Johnstone methodwould produce a nil award[56]. Not surprisingly, this has prompted many a call for a fair and proper solution to be found and adopted.

72.A solution to the problem in England may soon be at hand. In February and March 2017, the Lord Chancellor issued successive consultation papers seeking to muster public support in bringing about fundamental changes to the assumed portfolio of investment upon the footing that the setting of the discount rate has to be “accepted by the public for it to work”[57].

73.After the conclusion of the consultation exercise, on 20 December 2018, the English Civil Liability Act 2018 received Royal Assent. This introduced a change to the way that the discount rate was to be set in the future under the English Damages Act 1996. The Act provides for the Lord Chancellor to set the discount rate with reference to the return that claimants would reasonably expect to achieve if they invested in a “low risk” diversified portfolio.  The Lord Chancellor can set more than 1 discount rate: he may prescribe different rates of return for different classes of case and distinguish between classes of case by reference to the description of future pecuniary loss that is involved or the length of the period during which future pecuniary losses are expected to occur[58].  The legislation states that it should be assumed that the damages are invested using an approach that involves – (i) more risk than a very low level of risk, but (ii) less risk than would ordinarily be accepted by a prudent and properly advised individual who has different financial aims.  In doing so, the Lord Chancellor is to have regard to the following when setting the rate: the actual investments made by claimants; the actual returns that are available to claimants; and the appropriate allowance for tax, inflation and investment fees[59]. The Act also requires the Lord Chancellor to consult, in the case of the first review of the rate, the Government Actuary, and for subsequent reviews, with an independent expert panel chaired by the Government Actuary and for all reviews, as at present, HM Treasury.  Under the terms of the Act, the Lord Chancellor must start the review within 90 days of Royal Assent.

74.The English consultation exercise that took place prior to the passage of the English Civil Liability Act 2018 included a review of how discount rates were set in other jurisdictions, including Hong Kong[60].  On 29 September 2017, the UK Government Actuary’s Department produced a summary of portfolios[61] presented to it, from which they compiled a low risk portfolio, being the average of 11 different portfolio recommendations they had received:

Asset Class	LOW RISK PORTFOLIO AVERAGE (mean)
UK Equities	12.71%
Overseas Equities	13.31%
ILGS	4.74%
UK Gilts (FI)	13.18%
Overseas Gov Bonds (FI)	2.05%
Corporate Bonds (FI)	22.29%
Cash	9.54%
Property	4.11%
Alternatives	16.86%
Commodities	1.22%
Other	0.01%
TOTAL	100.02%

About 26% of the above low risk portfolio is invested in equities, 10% in cash, about 42% in bonds, 4% in property, 1% in commodities, and about 17% in alternatives[62]. Although this low risk portfolio has similarities with the Chan Pak Ting portfolio for needs exceeding 10 years[63], it contains higher risk investment vehicles.  The expectation is that the Lord Chancellor will set different discount rates for price inflation and wage inflation, and for different periods of future needs, at rates similar to those set in Chan Pak Ting v. Chan Chi Kuen (No.2) [2013] 2 HKLRD 1.

75.In Ng Chi Chung v Lau Kam Ping [2000] 2 HKC 759 Deputy High Court Judge Carlye Chu, as she then was, also ruled that damages for providing alternative accommodation should be on a purchase and not a rental basis.  In that case, the plaintiff, who had suffered severe injuries, resided in a public housing unit with his family members. The defendant suggested that new accommodation was unnecessary because (a) a full-time live-in domestic helper was not required, (b) some adaptation work could be done to the plaintiff’s home to meet his requirements, and (c) new accommodation would lead to unjustified increased in space for his family members. The learned judge found that a domestic helper was required, and she noted that there was no evidence to show that Housing Authority would permit the proposed home modifications.  She found that the increase in space for the plaintiff’s family members was inevitable given his needs.  In assessing costs of alternative accommodation, the learned judge considered it more appropriate to proceed on a purchase basis and not a rental basis since there were uncertainties with rental accommodation: the proposed home modifications might not find favour with the landlord, and there was the question of reinstatement at the end of each tenancy. A purchased accommodation had the advantage of providing a permanent residence with greater flexibility in terms of the adaptation work to be carried out to suit the plaintiff’s needs. Roberts v. Johnstone had not been cited to the learned judge and she awarded damages for alternative accommodation on the basis of the capital value of such alternative accommodation (and not the cost of borrowing the capital sum) less rental for the plaintiff’s existing accommodation:

“The capital value has been estimated to be $2,028,000. From this figure, there should be deducted the rental of the plaintiff’s present accommodation calculated at a multiplier of 15, having regard to the fact that the parents are aged 53 and 55. The amount to be deducted is: $1,385 x 12 x 15 = $249,300. The amount to be awarded is therefore: $2,028,000 – $249,300 = $1,778,700. The plaintiff should also be awarded the costs of adaptation work in the amount of $145,917.”[64]

76.In Lee Suk Yin & ors v National Insurance Company Ltd. HCPI 439/2000, 28 September 2001[65], it was common ground between the parties that purchase of a suitable flat would be cheaper than to rent a suitable flat, given the circumstances of the case. Suffiad J assessed damages for suitable alternative accommodation on a purchase basis and held that damages for purchase of suitable alternative accommodation should not be the net capital cost of such purchase, but the additional annual costs over the plaintiff’s lifetime of providing that accommodation, citing Ng Kwok Wing v. Lau Ping Kwan & Ors. [1996] 4 HKC 667 which had applied Roberts v. Johnstone. He then proceeded to make his award as follows:

“107. In calculating the annual cost, I accept the figure of 4.5% suggested by the defendant to be the real return on investment. Applying that to the above figure of $3,501,364 it gives the annual cost to be $157,561. Using the multiplier of 19 on the annual cost I come to the figure of $3 million rounded off.

108.  In addition to that figure, the 3^rd plaintiff is entitled to estate agent’s fee of say 1% on the purchase price of $4 million, stamp duty which would come to $90,000 under the present scale and also the cost of adaptation, a reasonable sum for which I assess to be $200,000.”

109.  Taking in the additional items, I arrive at the final figure of $3,330,000which is the amount assessed under this head.”

77.The award of $3 million was about 86% of the net capital cost of the suitable alternative accommodation.  In Lee Suk Yin & ors v National Insurance Company Ltd. the plaintiff, aged 24 at trial, had a life expectancy of about 35 years[66] and the judge chose a whole life multiplier of 19.  Under Table 28 of the Chan Tables[67], a multiplier for a term certain of 35 years would attract a multiplier of 23.43 at a discount rate of 2.5%. The 2018 provisional life expectancy figures for males is 82.17[68]. It is explained in §20 of the introduction to the 7^th edition of the Ogden Tables[69] that:

“…, the medical evidence may state that the claimant is likely to live for a stated number of years. This is often then treated as requiring payment to be made for a fixed period equal to the stated life expectancy and using Table 28 to ascertain the value of the multiplier. In general, this is likely to give a multiplier which is too high since this approach does not allow for the distribution of deaths around the expected length of life. For a group of similarly impaired lives of the same age, some will die before the average life expectancy and some after; allowing for the spread of deaths results in a lower multiplier than assuming payment for a term certain equal to the life expectancy. In such cases, it is preferable to look up the age in the 0% column in Table 1 or 2 for which the value of the multiplier at 0% is equal to the stated life expectancy. The relevant multipliers are then obtained from the relevant table using this age. Take, for example, an impaired male life which is stated to have a life expectancy of 20 years. By interpolation, the age for which the multiplier in the 0% column in Table 1 is 20 is:

(20 – 19.74[70])/(20.57 – 19.74) x 66 + (20.57 – 20)/(20.57 – 19.74) x 67 which equals 66.7 years.

The value of the whole life multiplier is then obtained from the 2.5% column of Table 1 for age 66.7 years:

(67 – 66.7) x 15.38[71] + (66.7 – 66) x 14.90

which equals 15.04 (compared to 15.78 for the value of a term certain of 20 years using the 2.5% column of Table 28).”

78.A similar exercise using Table 1 of the Chan Tables will produce the following whole life multiplier of 22.94 for a life expectancy of 35 years:

“By interpolation, the age for which the multiplier in the 0% column in Table 1 is 35 is:

(35 – 34.83[72]) / (35.84 – 34.83) x 50 + (35.84 – 35) / ( 35.84 – 34.83) x 51 which equals 50.33 years.

The value of the whole life multiplier is then obtained from the 2.5% column of Table 1 for age 50.33 years:

(51 – 50.33) x 23.09[73] + (50.33– 50) x 22.66

which equals 22.94 (compared to 23.43 for the value of a term certain of 35 years using the 2.5% column of Table 28).

A rough and ready method would be to deduct 0.5 from the value shown on Table 28.

79.If Suffiad J were making the award for damages for suitable alternative accommodation in Lee Suk Yin & Ors. v National Insurance Company Ltd. today, he would apply the net rate of return of 2.5% to the net capital cost of $3,501,364, to produce an annual cost of $87,534. Using the above multiplier 22.94 on the annual cost would produce an award of $2 million rounded off, which is only about 57% of the net capital cost of purchasing suitable alternative accommodation.

80.In the present case, the sale price of suitable properties ranged from $5 million to $9 million[74].  The median price is $7 million. Applying the net rate of return of 2.5% to the “assumed” net capital cost of $7 million produces an annual cost of $175,000. Applying the whole life multiplier adopted in the present case of 8.61[75] on the annual cost would produce an award of $1.5 million rounded off, which is only about 22% of the assumed net capital cost of purchasing suitable alternative accommodation. Clearly, the Robertsv Johnstone method ought not to be adopted in cases where the plaintiff’s future life expectancy is short.

81.If one were to apply the current Hong Kong mortgage rate of 2.375% (prime rate of 5.125 – 2.75%) to the net capital cost of $3,501,364 of the suitable accommodation required in case of Lee Suk Yin & ors v National Insurance Company Ltd., the annual cost would amount to $83,157.  Using the above multiplier 22.94 on the annual cost would produce an award of $1.9 million rounded off, which is only about 54% of the net capital cost of purchasing suitable alternative accommodation. As mortgage rates are currently low in Hong Kong and property prices are high, we could attempt to revert to making an award, based on Chapman v. Lidstone, byawarding interest at a rate which would allow the plaintiff to borrow in order to pay for the required accommodation. With low interest rates and high prices, the problem of making an award in excess of the net capital cost of acquiring suitable accommodation will not arise.  However, the problem of funding the down payment of the high capital cost would need to be tackled. The other awards made in the plaintiff’s action for damages may be insufficient to fund this required down payment. There is also the concern of rising interest rates and increased costs of repaying the mortgage. These complex issues would need to be resolved in an appropriate case.  Perhaps, the best solution to the problem may lie in the method adopted by Cheung J in Lai Chi Pon v Toto Steel & Iron Works Ltd & Ors.discussed in §55 above.

Assessment of the cost of future alternative accommodation in the present case

82.Although the plaintiff had previously owned his premises[76], the problems posed by the Roberts v Johnstone method will not affect the present case. As stated in §52 above, it is common ground between the plaintiff and the 4^th defendant that that this head of claim ought to be assessed by reference to the cost of rental rather than the purchase cost of suitable accommodation.I apply the measure of the rental difference to acquire suitable alternative premises to assess the award under this head of claim. I adopt the median of the asking rentals, i.e. $15,000 per month, to assess this head of claim. The plaintiff has rightly offered to give credit for the rent of $1,105 that he is paying for his flat in Tuen Mun.  The net amount of rental difference recoverable from the 1^st and 2^nd defendants would be $15,000 - $1,105 x 12 x a whole life multiplier of 8.61 = $1,435,631, which is the amount I award to the plaintiff.

83.It is likely that the plaintiff will move to other accommodation at least twice before the end of his natural life.  Legal costs are estimated to be $3,000 per lease, which comes to $6,000 for the 2 leases.  Agency fee is half a month’s rent and amounts to $15,000 for the 2 leases.  Stamp duty is 1% of the annual rent at $1,800 per lease or $3,600 for the 2 leases.  As can be seen from the internet searches, the current rental practice is to pay rent that is inclusive of the amount of rates, which is borne by the landlord.

84.The cost of removal and purchase of home items is claimed at $20,000 per occasion. This is reasonably claimed in the sum of $40,000.  Further, there is claim for the cost of consultation for home modifications at $1,500 per hour for 4 hours, as advised by the experts[77]. For the plaintiff to move to other accommodation twice, this cost will amount to $12,000.  Modification of the flat to make it suitable for the plaintiff is estimated by the experts to cost $100,000[78]. For the 2 new leases, the cost of modifications will amount to $200,000.

85.Under this head of claim for the cost of providing the plaintiff with suitable alternative accommodation for life, I award $1,712,231 against the 1^st and 2^nd defendants, being the total of the above amounts that I have assessed.  This is less than the sum of $2,078,218.24 offered by the 4^th defendant[79].

Socialisation and holidays

86.Mrs Tsang recommends $3,000 per annum[80] while Mrs Chow says that $1,500 to $2,000 per annum would suffice[81], as the plaintiff is already being provided with $3,000 per month as transport expenses, which would include his cost of attending outings.  The plaintiff has agreed to accept the lower sum of $2,000 per annum, as advised by Mrs Chow.  Applying a whole life multiplier of 8.61 to this amount the award under this head of claim comes to $17,220, which I award. I note that the 4^th defendanthas only offered $15,067.50[82] under this head of claim.

Cost of handyman services

87.The experts agree that $1,000 per annum ought to be provided to hire someone to do the minor repairs around the flat which the plaintiff used to be able to do[83].  Applying a whole life multiplier of 8.61 years, the cost amounts to $8,610.  The 4^th defendant agrees to this amount, which I award under this head of claim. This head of claim for damages at common law is not to be confused with the statutory claim for loss of services to his family which I deal with below[84].   

General damages for PSLA

88.The plaintiff submits that his injuries fall within the disaster category of disablement.  The plaintiff accepts that awards of general damages for PSLA are based on comparable cases and he submits that a comparable case is Lee Suk Yin & Ors. v National Insurance Company Ltd., HCPI 439/2000, 28 September 2001.

89.In that case, the claimant was injured in a traffic accident and suffered burst fracture of the C6, severe head injuries involving loss of consciousness, subdural haematoma and disorientation and pulmonary contusion. The fracture was stabilised with a Halo ring and jacket for 4 months and all other injuries were treated conservatively. He was in hospital for 22 months with 1.5 months in intensive care.  At trial he had complete paralysis of the lower limbs and the trunk, some residual power in the upper limbs but no useful function in the hands and fingers.  He had double incontinence and was sexually impotent.  He suffered from persistent cramps and pain in the lumbar region and left abdomen.  He was totally dependent in the activities of daily living.  General damages for PSLA was awarded in the sum of $1.8 million.

90.The plaintiff’s condition in the present case is quite similar but less serious. Further the claimant referred to above was in his early 20s, whereas the plaintiff was in his early 50s, when their respective accidents occurred.  I am of the view that, had the present case been tried in or about September 2001, general damages for PSLA would probably have been awarded in the region of $1.7 million.

91.In Lam Chan Hung v Hang Yue Engineering Ltd. & Ors. [2013] 3 HKLRD 420, HCPI 121/2011, 12 March 2013,I reviewed the range of awards for damages for PSLA:

“Damages for PSLA

51. The range of awards for damages for PSLA was revised in Chan Pui Ki v Leung On [1996] 2 HKLR 401 as follows:

Serious Injury	HK$400,000 – HK$540,000
Substantial Injury	HK$540,000 – HK$660,000
Gross Disability	HK$660,000 – HK$1,000,000
Disaster	HK$1,000,000 upwards

52.    Judgments that have been handed down since then have taken into account the effects of price inflation since 1996. The starting point of the “serious injury category” was reset by the Court of Appeal in Lawati Bhawani Bikram v. Ting Kau Contractors JV (CACV 3/2002, 25 September 2002) at $460,000.  A corresponding increase of starting points of the other categories produces the following range of awards after that decision in 2002:

Serious Injury	HK$460,000 – HK$620,000
Substantial Injury	HK$620,000 – HK$760,000
Gross Disability	HK$760,000 – HK$1,150,000
Disaster	HK$1,150,000 upwards”

92.In Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd.(in Liquidation), HCPI 913/2011, 17 July 2015, I held[85] that awards for damages for PSLA ought to start at $510,000 as at July 2015. In reaching this figure, I had regard to the revised values of PSLA awards as at June 2012 shown on p.61 of Personal Injury Tables Hong Kong 2013 as follows:

Serious Injury	HK$462,000 – HK$623,000
Substantial Injury	HK$623,000 – HK$762,000
Gross Disability	HK$762,000 – HK$1,154,000
Disaster	HK$1,154,000 upwards

The revision was based on the June value of the Hong Kong Composite Consumer Price Index, June being selected as the mid-point of the year.  When courts reset the range of awards for damages for PSLA, on account of the impact of inflation, they round off the figures to the nearest $10,000.  If the rounding off exercise is undertaken for the revised values for 2012 set out above, they produce figures which are identical to the range of awards set out in Lawati Bhawani Bikram v. Ting Kau Contractors JV, CACV 3/2002, 25 September 2002, referred to in §91 above.  The fact that the range of awards in 2002 and 2012 was identical can be explained by the deflationary impact of SARS which was corrected by subsequent inflation. In Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd. (in Liquidation), I took judicial notice that, in the 3 years since 2012, the year on year inflationary increase in June 2013, June 2014 and May 2015 (the June figure was not yet available) had been +4.1%, +3.6% and +3%.  Applying those percentage increases to the starting point of PSLA awards for the Serious Injury category produced the then current figure of $510,000 ($462,000 x 104.1% x 103.6 % x 103%, rounded up).

93.In David John Slater v Commissioner of Police HCPI 646 of 2012, 7 July 2017, I held that the starting point for general damages for the serious injury category of disablement should rise to $530,000 to reflect the impact of inflation:

“22. I ought to mention, by way of a postscript, that in Wong Man Kin v. Golden Wheel (C&HK) Transportation Co. Ltd., HCPI 913/2011, 17 July 2015, I had held that awards for damages for PSLA in personal injury cases falling within the Serious Injury category started at $510,000. Inflation has not been high in the past 2 years but even so awards for damages for PSLA in personal injury cases falling within the Serious Injury category would start at $530,000 today¹.

¹ I take judicial notice that, according to the Composite Consumer Price Index, in the 2 years that have passed since mid-2015, the year on year inflationary increase in June 2016 and May 2017 (the June 2017 figure is not yet available) has been +2.4% and +2%.  Applying those percentage increases to the starting point of PSLA awards for the Serious Injury category produces the current figure of $530,000 ($510,000 x102.4% x102 %, rounded up).”

94.As I have agreed[86] to adopt the date of 28 October 2017 as the assumed date of the assessment of damages, my award for damages for PSLA ought to reflect the level of awards at or about July 2017 when David John Slater v Commissioner of Police was decided.

95.The starting point for Serious Injury awards in Lawati Bhawani Bikram v. Ting Kau Contractors JV in September 2002 was $460,000. The starting point for Serious Injury awards in David John Slater v Commissioner of Police is $530,000, an increase of about 15.2%. Applying the same percentage increase to the full range of awards for PSLA produces the following level of awards for damages for PSLA as at or about July 2017:

Serious Injury	HK$530,000 – HK$715,000
Substantial Injury	HK$715,000 – HK$875,000
Gross Disability	HK$875,000 – HK$1,325,000
Disaster	HK$1,325,000 upwards

96.Ms Christina Lee, counsel for the plaintiff, has produced a very helpful table of awards for PSLA that have been handed down in disaster cases since the decision of Cheung J, in Chan Pui Ki v. Leung On, HCA 2006/1992, on 30 October 1995, on the proper level of awards for PSLA, which was upheld by the Court of Appeal [1996] 2 HKLRD 401.  That table appears as an appendix to this judgment[87]. The following table adjusts the awards that were made in those cases, on account of inflation, in order to show what the awards would have been had they been made in or about July 2017:

DISASTER CATEGORY PSLA AWARDS POST CHAN PUI KI v. LEUNG ON

(HCA 2006/1992, Cheung J, 30 October 1995, Court of Appeal [1996] 2 HKLRD 401)

	Date of Judgment	Name of Plaintiff	PSLA	Adjustment for Inflation: (PSLA award x Lower end of Disaster category as at July 2017 / Lower end of Disaster category at the time of judgment (rounded off to nearest $10,000)
1.	23.05.1996	Ng Kwok Wing	$1,500,000	$1,500,000 x $1,325,000 / $1,000,000 = $1,990,000
2.	20.03.1997	Choi Mei Ho	$1,500,000	$1,500,000 x $1,325,000 / $1,000,000 = $1,990,000
3.	18.07.1997	Lai Chi Pon	$1,500,000	$1,500,000 x $1,325,000 / $1,000,000 = $1,990,000
4.	30.10.1997	Ta Xuong	$2,000,000	$2,000,000 x $1,325,000 / $1,000,000 = $2,650,000
5.	21.12.1999	Wong Hin Pui	$1,000,000	$1,000,000 x $1,325,000 / $1,000,000 = $1,330,000
6.	02.02.2000	Chan Yuk	$1,250,000	$1,250,000 x $1,325,000 / $1,000,000 = $1,660,000
7.	17.09.2001	Lily Tse Lai Yin	$1,800,000	$1,800,000 x $1,325,000 / $1,000,000 = $2,390,000
8.	28.09.2001	Lee Suk Yin	$1,800,000	$1,800,000 x $1,325,000 / $1,000,000 = $2,390,000
9.	07.01.2002	Chan Yuet Lui	$1,700,000	$1,700,000 x $1,325,000 / $1,000,000 = $2,250,000
10.	03.05.2002	Li Xiao You	$1,700,000	$1,700,000 x $1,325,000 / $1,000,000 = $2,250,000
11.	01.08.2003	Fung Kwok Ki	$1,500,000	$1,500,000 x $1,325,000 / $1,150,000 = $1,730,000
12.	03.09.2004	Tam Ting Yee	$2,000,000	$2,000,000 x $1,325,000 / $1,150,000 = $2,300,000
13.	28.11.2006	Wong Kwun Sang	$2,250,000	$2,250,000 x $1,325,000 / $1,150,000 = $2,590,000
14.	20.06.2007	Cham Cheung Sing	$2,000,000	$2,000,000 x $1,325,000 / $1,150,000 = $2,300,000
15.	25.11.2013	Kwok Hoi Wan Irene	$2,500,000	$2,500,000 x $1,325,000 / $1,150,000 = $2,880,000

97.I award the sum of $2,250,000 as damages for PSLA in the present case.

Loss of society and loss of services

98.The plaintiff claims loss of society and loss of services to his family[88] under section 20C of the Law Amendment and Reform (Consolidation) Ordinance, Cap.23 (“LARCO”) at the former statutory maximum of $150,000 set under section 4(3) of the Fatal Accidents Ordinance, Cap.22.  The statutory maximum was increased to $220,000 in 2018[89].  The 4^th defendant makes no offer for these 2 items[90].

99.Sections 20B and 20C of LARCO provide:

“20B. Abolition of common law actions for loss of society or service

Except as provided in section 20C, no person shall be liable in tort—

(a) to a husband on the ground only of having deprived him of the services or society of his wife;

(b) to a parent (or person standing in the place of a parent) on the ground only of having deprived him of the services of a child; or

(c) on the ground only—

(i) of having deprived another of the services of his menial servant;

(ii) of having deprived another of the services of his female servant by raping or seducing her; or

(iii) of enticement of a servant or harbouring a servant.

20C. Actions for loss of society or services

(1) Where injury is caused to any person by any wrongful act, neglect or default which entitles him to maintain an action and recover damages, and which causes any person referred to in paragraph (a), (b), (c), (d), (e), (f) or (g) to be deprived of his society, the person who is liable to such an action shall, subject to subsection (3), also be liable in damages for the loss of the injured person’s society suffered by such of the following persons as survive 30 days after the date on which the cause of action accrued—

(a) the husband or wife of the injured person, unless they had been living apart for a continuous period of at least 2 years immediately before the date on which the cause of action accrued; or

(b) where there is no spouse entitled to recover damages under paragraph (a), any children of the injured person; or

(c) where there is no person by or for whom a claim can be made under paragraph (a) or (b), any concubine taken by the injured person before 7 October 1971; or

(d) where there is no person by or for whom a claim can be made under paragraph (a), (b) or (c), any person who—

(i) was living with the injured person in the same household immediately before the date on which the cause of action accrued; and

(ii) had been living with the injured person in the same household for at least 2 years before that date,

as the husband or wife of the injured person; or

(e) where there is no person by or for whom a claim can be made under paragraph (a), (b), (c) or (d), the parents of the injured person or (if the injured person was illegitimate) his mother; or

(f) where there is no person by or for whom a claim can be made under paragraph (a), (b), (c), (d) or (e), but the injured person was at the date on which the cause of action accrued a minor, any person who during any marriage to which that person was a party treated the injured person as a son or daughter of the family in relation to that marriage; or (Amended L.N. 307 of 1998)

(g) where there is no other person by or for whom a claim can be made under this subsection, any brother or sister of the injured person. (Amended 18 of 2014 s. 153)

(2) The total sum awarded as damages under subsection (1) in respect of any injured person—

(a) shall not exceed the sum specified in section 4(3) of the Fatal Accidents Ordinance (Cap. 22); and

(b) shall, where there are 2 or more claimants, be divided equally between them.

(3) Damages shall not be payable by virtue of subsection (1) if the injured person dies as a result of the act, neglect or default referred to in that subsection and his death gives rise to a right to claim damages for bereavement under section 4 of the Fatal Accidents Ordinance (Cap. 22).

(4) Where injury is caused to any person by any wrongful act, neglect or default which entitles him to maintain an action and recover damages in respect thereof and which causes any dependant of the injured person to be deprived of his gratuitous services, the action may include a claim for damages by the injured person for impairment of his ability to render such services.

(5) …”

100.The plaintiff has full cognitive function and is capable of appreciating, and returning love and affection.  Although he is no longer able to participate in active family life, he is visited by his sisters regularly and he also goes out occasionally with them.  However, as a result of the accident, his wife divorced him in October 2011 and his daughter no longer lived with him from that time onwards[91].  Taking all matters into account, the plaintiff submits that an award in the region of $100,000 would be appropriate recompense.  I do not agree.  His wife was no longer qualified to make any such claim ,under section 20C(1)(a), after she was divorced from him in October 2011. His daughter is entitled to such a claim under section 20C(1)(b)but she has lived apart from him since October 2011.  As his daughter remains entitled to make such a claim, the plaintiff’s sisters are not entitled, under section 20C(1)(g), to make such claim.  In these circumstances, I only award $15,000 in respect of his statutory claim.

101.As for loss of services, it has been recommended that the plaintiff should receive $1,000 per annum for DIY services, which he would otherwise have undertaken but for the accident.  He urges me to award $7,000 being $1,000 per annum over the pre-trial period. However, as his wife divorced him and his daughter stopped living with him about a year after this accident, I only award the sum of $1,000 to him for loss of services to his family.

A summary of my award

102.A summary of my award is as follows:-

I	Pre-Trial Losses and Expenses
(i)	Loss of earnings and MPF[92]	2,503,620
(ii)	Special Damages:
	- Medical expenses[93]	115,144
	- Travelling expenses[94]	26,419
	- Tonic food[95]	30,000
	- Aids and equipment[96]	153,860
	- Medical and non-medical consumables[97]	91,280
(iii)	Value of services of care and services:
	- Value of services of sisters[98]	168,000
	- Domestic helper and care services[99]	360,986
(iv)	Cost of alternative accommodation[100]	50,000
	Sub-total	3,499,309
II	Future Losses and Expenses
	Loss of earnings and MPF[101]	2,042,239
	Medical treatment[102]	897,396
	Transport cost[103]	309,960
	Cost of care regime[104]	1,562,715
	Cost of medical equipment[105]	255,708
	Cost of consumables[106]	156,348
	Cost of alternative accommodation[107]	1,712,231
	Socialisation and holidays[108]	17,220
	Cost of handyman services[109]	8,610
	Sub-total	6,962,427
III	General Damages
	Pain, suffering and loss of amenities[110]	2,250,000
	Loss of Society[111]	15,000
	Loss of Services[112]	1,000
	Sub-total	2,266,000
	Gross Total	12,727,736
	(Less Compensation Received)	(2,200,000)
	Net Total	10,527,736

103.The agreed settlement sum with the 4^th defendant is $10,587,000, net of the employees’ compensation of $2,200,000 already received.  It would appear that the amount quantified above is slightly lower than the agreed settlement sum, the difference between the 2 amounts being $59,264.  However, the plaintiff urges me to award the settlement sum of $10,587,000 against the 1^st and 2^nd defendant as the settlement sum is not inclusive of interest. When the interest element is added to the sum quantified above, it would exceed the settlement sum substantially.  The plaintiff agrees to an award being made in the sum of $10,587,000, inclusive of interest in the sum of $59,264, and he is prepared to waive interest on pre-trial loss and damage, and on damages for PSLA, insofar as such interest exceeds the sum of $59,264. I am prepared to enter final judgment against the 1^st and 2^nd defendants on this basis.

Final judgment, interest and costs

104.I make the following orders:

(1)   Final judgment be entered against the 1^st and 2^nd defendants in the sum of $10,587,000, net of the employees’ compensation awarded in DCEC 1852/2012 in the sum of $2,200,000 and received by the Plaintiff, and inclusive of interest up to the date of judgment;

(2)   The 1^st and 2^nd defendants do pay the plaintiff’s costs of this action (including all costs reserved), to be taxed on a party and party basis, if not agreed;

(3)   the 4^th defendant do pay the plaintiff’s costs of this action from and including 5^th November 2015, (including all costs reserved from and including 5^th November 2015), to be taxed on a party and party basis, if not agreed;

(4)   The costs of the 4^th defendant (including the costs to be paid by the 4^th defendant to the plaintiff pursuant to sub-paragraph 3 hereinabove) be paid by the 1^st and 2^nd defendants, to be taxed, if not agreed, on a party and party basis;

(5)   The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.

Kong Hoi Lam v. Cheung Yuk Kwan & Ors.

105.I cannot conclude this judgment without referring to Kong Hoi Lam v. Cheung Yuk Kwan & Ors., HCPI 801/2012, 19 October 2015.  In that case, the Employees Compensation Assistance Fund Board (“The ECA Fund Board”), who is the 4^th defendant in the present case, agreed to pay some $15.4 million to the plaintiff, in addition to the employees’ compensation in the sum of just under $2.2 million that he has already received from the ECA Fund Board.  I made certain observations on sections 20A(1), 20B(1) and 20D(1) and (2) of the Employees Compensation Assistance Ordinance, Cap. 365, (“ECAO”) in that case.  When a relief payment, to be made under the ECAO in respect of unrecovered common law damages, exceeds the sum of $1.5 million, the latter sum is first paid and the balance sum is paid by instalments.  This is what I said in Kong Hoi Lam v. Cheung Yuk Kwan & Ors. where the plaintiff had a life expectancy of 29 years:

“5. My observations herein are not dictated by the amount of the settlement, nor by the issue of costs, but by the provisions of Section 20A(1), 20B(1) and 20D(1) and (2) of the ECAO. These provisions have caused the parties to reach an agreement, which is embodied in the summons, that the ECAS Fund Board will make a first payment of $1.5 million, and that the remaining sum of $13.9 million will be paid by monthly payments.

6. Now the monthly payment that is to be made is in the sum of $28,200, and a quick calculation shows us that it will take some 40 years for full payment to be made. How can that sit with the provision in Section 20B, which says:

“(1) Subject to section 20A(2) and subsection (3), the amount of a relief payment to an eligible person shall be the amount of damages for which the employer is liable to pay the eligible person after that amount is reduced by:

(a) the amount, if any, of compensation which has been paid or is payable under the Employees’ Compensation Ordinance (Cap 282) in respect of the injured employee in relation to the accident concerned; and

(b) the amount, if any, of those damages already paid by the employer.” (Emphasis added)

In this case, the calculation of damages in the sum of $15.4 million is net of the employees compensation paid, and accords with the requirement of Section 20B(1). The employer, as far as I understand, has made no payment towards the employees’ compensation, or any other payment on account of damages. The references to Section 20A(2) and (3) are not relevant for the present purposes. Section 20A(2) has been satisfied because what I have done this morning is to make an order of court that is required under Section 20A(2), that:

“An employer is not to be regarded as liable for the payment of an amount of damages, unless the amount is payable pursuant to a judgment or order of a court of competent jurisdiction.”

Section 20A(3) talks about reasonable conduct on the part of the injured employee in pursuing his employer and any insurer for the payment, and which does not apply in this case. As far as I understand, the employer was not covered by any insurance, and steps taken to pursue him have not borne fruit.

7. How do we read Section 20B with the other provisions contained in Section 20C and 20D?

8. I refer first to Section 20C(1) and (2). The effect of these provisions is that where the amount of relief payment exceeds the prescribed relief payment, which is prescribed under the 4th Schedule, then one must follow the regime of making a first payment of $1.5 million followed by a monthly payment equivalent to the prescribed monthly amount or the monthly earnings of the injured employee, whichever is higher. The monthly payments have to be made until the full amount of the relief payment has been made. In the case of a severely injured employee, who is defined to be a person suffering from paraplegia or quadriplegia, there is an additional amount that can be paid. The plaintiff is a severely injured employee, within the meaning of this definition, and is entitled to the additional amount.

9. The terms of the summons, which I have make an order of this court, state that:

“The remaining 13.9 million shall be paid … by way of monthly payments pursuant to Section 20C(2)(b) of the ECAO, in the sum of $28,200 …”

That sum of $28,200 is made up of the last monthly earnings of the plaintiff at the time of the accident, which was $18,200, and the additional sum of $10,000, being the prescribed monthly extra payment for severely injured persons.

10. A quick calculation on a calculator will show you that it will take some 40 years to make payments which will amount to the sum of $13.9 million, and that, of course, raises the question of the impact of future inflation on the sums to be paid so many years in the future; and, of course, there is no provision in the ECAO for the payment of interest. Specifically, there is no provision that the ECAS Fund Board should pay interest on the amounts which it is not paying immediately, and which it will pay many, many years in the future. That is something that I highlight.

11. But more than that, I see that there is an internal inconsistency between these provisions and what I regard to be the primary provision in Section 20B(1), which is to make a relief payment to the eligible person in the amount of damages for which the employer is liable. That inconsistency is created by Section 20D(1) and (2), which are to the effect that the monthly payments will cease if the eligible person dies in the interim.

12. In this case, the neurologist, Dr S T Chan, who examined the plaintiff, has stated in his report dated 19 February 2013 that, as from February 2013, the life expectancy of the plaintiff was some 31.68 years. Given the passage of time since then, his life expectancy as from October 2015 is 29 years. So it is very clear that the literal effect of Section 20D on this case is to deny this plaintiff his entitlement to a relief payment in the amount of his damages. I have not done the maths, but I do not think that he would have received as much as 70 per cent of the amount of damages that he is entitled to, when his life comes to an end.

13. Mr Chan, who appears for the ECAS Fund Board, has been caught slightly off guard because I did not ask him in advance to prepare any submissions on this point; but he submits that the provisions in Section 20B(1) in relation to the payment of a relief payment in the amount of damages is subject to the subsequent provisions.

14. I am afraid I do not quite see it that way. I would have thought that Section 20D cannot override the obligation, to make payment in the amount of the assessed damages or agreed damages, which is contained in Section 20B. It appears to me that the objective of the provisions in Section 20C and 20D, and the intention of the Legislature enacting them, is to safeguard the funds of the ECAO Fund Board. But how could it possibly have been the intention of the Legislature to safeguard the funds of the ECAO Fund Board by keeping the payments at a level that will ensure that the injured employee will die before the full amount of damages are paid?

15. I have referred to the injustices that have been built into this Ordinance by the amendments that were made in 2002, and I refer to my previous judgments on this matter, including Lau Yuk Hung v Tsang Kwong Ming [2013] 2 HKLRD 614, Kwan Kam Pui v Fung Man and others, HCPI 18/2012, 30 May 2014, [2014] 6 HKC 361, Chi Yuk Pui v Grace Mind Corporation LtdHCPI 917/2014, 22 May 2015, [2015] 3 HKLRD 271 and a recent assessment of damages I heard in Lee Luk Po v Sin Sze trading as Ngai Lung Iron Ware Eng., HCPI 1085/2014, 7 August 2015.

16.    I make another plea to the Secretary for Welfare and Labour and to the Commissioner of Labour, and to all those charged with safeguarding the interests of our labour force to please quickly take a close look at the ECAO and do something about it.  We cannot claim to have a first class legal system when our laws contain the sort of provisions we find in our ECAO.”

106.The plaintiff in the present case earned $29,350 at the time of the accident. He is entitled to monthly instalment payments of $39,350, the additional $10,000 being the prescribed monthly extra payment for severely injured persons.  After receiving the first payment of $1.5 million, the balance sum of $9,087,000 ($10,587,000 – $1,500,000) will be paid by 231 monthly instalments ($9,087,000 / $39,350).  It will take 19 years and 3 months before he is fully paid.  However, the plaintiff only has a life expectancy of about 9 years from 28 October 2017[113].  He only has a life expectancy of about 7 years and 5 months from today.  He will receive less than half of the amount of damages that he is entitled to, when his life comes to an end.

107.Another problem posed by these provisions is that the initial payment of $1.5 million is likely to be insufficient to enable a severely injured plaintiff to obtain the expensive aids and equipment, and the suitable accommodation, and to start the care regime, that would have been recommended to him.  Whether or not the monthly payments can fund the care regime recommended for a severely injured plaintiff would depend on what his earnings were at the time of the accident.

108.The plea I made in Kong Hoi Lam v. Cheung Yuk Kwan & Ors.  3 and a half years ago has fallen on deaf ears.  I make another plea to amend the ECAO by pointing out that the amendments to the ECAO in 2002, when the ECA Fund Board was beset with financial difficulties, have left employees less protected than our motorists and road users.

109.Let us examine a hypothetical case to bring out the disparity between the protection provided by the Motor Insurers’ Bureau of Hong Kong (“MIB”) and by the ECAO. In our hypothetical case, EO is the owner of a transport business and he owns a goods vehicle. He employs D to drive the goods vehicle and he employs DW to deliver the goods to and from the goods vehicle. Although EO had purchased third party liability insurance to cover the use of the goods vehicle, the policy has lapsed and he had not renewed it. He has never purchased employees’ compensation insurance. D drives negligently causing a traffic accident that seriously injures DW, who is a passenger travelling in the vehicle in the course of his employment by EO. Also seriously injured in the accident is another passenger, DWTP, a delivery worker employed by another person, TP, who is travelling in the course of his employment with TP in order to accompany TP’s goods that are loaded on the goods vehicle.

110.In this hypothetical case, DW and DWTP have suffered the same injuries as the plaintiff in the present case and they both have the same shortened life expectancy as the plaintiff in the present case. Just like the plaintiff in the present case, they have obtained judgments for common law damages, assessed in the sum of about $10 million, against D in negligence and against EO in respect of his vicarious liability for D’s negligence.

111.As the motor insurance has lapsed, and D the authorised driver, and EO, the owner, are uninsured in respect of their liability towards DWTP arising out of the use the goods vehicle on a road, MIB will satisfy the judgment entered in favour of DWTP in full, within 28 days, “including any sum awarded by the court in respect of interest on that sum and any taxed costs”, pursuant to clause 2 of the MIB Agreement dated 1 February 1981.

112.DW, however, can only expect a relief payment from the ECA Fund Board similar to what the plaintiff in the present case can expect: a first payment of $1.5 million followed by monthly instalments in the sum of DW’s monthly earnings at the time of the accident plus an additional $10,000, being the prescribed monthly extra payment for severely injured persons. And just like the plaintiff in the present case, he will not have received the full amount of damages that he is entitled to, when his life comes to an end.

113.DW cannot look towards MIB for satisfaction because D’s liability to DW, and EO’s liability to DW are not covered by the terms of the motor policy, and, more importantly, are not required to be covered under section 6 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.  It is a standard term of a third party liability motor policy that:

“Special Exceptions to Section (II) Insurance[114]

The Company will not be liable:

…

(b) in respect of death of or bodily injury to any person arising out of and in the course of such person’s employment by:

(i) any person (including the Insured) claiming to be indemnified under Section (II); or

(ii) the employer of any person (including the Insured’s) claiming to be indemnified under Section (II);”

The effect of these provisions is that the motor insurer will not provide cover against legal liability if the injured person is an employee of the negligent driver, or of the negligent driver’s employer, and is acting in the course of his employment at the time of the accident.

Section 6 of the Motor Vehicles Insurance (Third Party Risks) Ordinance provides:

“6. Requirements in respect of policies

(1) In order to comply with the requirements of this Ordinance, a policy of insurance must be a policy which—

(a) is issued by an authorized insurer; and

(b) insures such person, persons or classes of persons as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the motor vehicle on a road and arising out of one event for an amount not less than that as may be prescribed: (Amended 46 of 1995 s. 4)

Provided that such a policy shall not be required to cover—

(i) liability in respect of the death arising out of and in the course of his employment of a person in the employment of a person insured by the policy or of bodily injury sustained by such a person arising out of and in the course of his employment; or

… [Emphasis added]”

It has been decided by the courts that where a co-employee was injured in the course of his employment by the negligence of his co-employee driver, and the motor policy insured their employer, then section 6(1)(b), referred to above, operated to exclude the requirement of cover, not only in respect of the employer but also in respect of the liability of the authorised driver[115].

114.Under clause 2 of the MIB Agreement dated 1 February 1981, MIB is only required to satisfy judgments in respect of a relevant liability which is defined in clause 1 to mean “a liability arising out of the death of or bodily injury to any third party in respect of which a policy must ensure the use of a motor vehicle by a person in order to comply with the Motor Vehicles Insurance (Third Party Risks) Ordinance. As D’s liability to DW, and EO’s liability to DW, are not required to be covered under section 6 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, DW cannot look towards MIB for satisfaction.

115.The rationale behind this state of affairs is that the injured employee should look to the employees’ compensation insurers for satisfaction as he could obtain a judgment against the employer in respect of the employer’s vicarious liability for the negligence of his employee, the driver.  The assumption, underpinning this rationale, is that the employer is law abiding and has purchased employees’ compensation insurance.

116.The hypothetical case I have described above points out the huge disparity in the protection provided under our laws to DWTP, a road user, and to DW, an employee injured at work, both of whom have suffered the same injuries in the same road traffic accident.

117.The failure on the part of employers to purchase employees’ compensation policies causes immense problems when employees of such uninsured employers are injured at work. The police have always been very active in prosecuting motorists driving without third party insurance.  Section 40(2) of the Employees’ Compensation Ordinance, Cap.282, (“ECO”) makes it a criminal offence for an employer to employ an employee without there being in force a policy of insurance issued for the purposes of Part IV of the ECO in relation to that employee. This provision came into force in 1984. However, I am not aware of a single prosecution by the Labour Department of an uninsured employer of an employee injured at work.  Given the extent of the cover provided by the ECAO and by MIB, a failure by an employer to comply with section 40 of the ECO must be considered to be a more serious offence than driving without third party insurance.

118.In Kwan Kam Pui v Fung Man and others, HCPI 18/2012, 30 May 2014, [2014] 6 HKC 361, I observed that:

“70. The misgiving I had expressed in Lau Yuk Hung v Tsang Kwong Ming & Ors., [2013] 2 HKLRD 614, prompted the Honourable Member of the Legislative Council, Mr Dennis Kwok, on 17 April 2013 to raise the question whether the government had any plans to introduce amendments to the ECAO, to which he received a reply from the Secretary for Labour and Welfare that the Fund had been operating at a loss for the years between 1996 – 97, and 2005 – 06, and had only started to accumulate surplus from 2008 – 09, and that, as at the end of March 2013, there was still an outstanding principal loan of around $93 million that had been provided by the government to the ECA Fund Board in 2002 to enable it to tide over its financial difficulties.¹ Given the financial situation of the Fund at that time, the administration considered that it was inopportune to initiate amendments to expand the scope of the Scheme to cover payment of costs and interests on damages awarded by the court, adding that the loan to the government would only be fully paid off by 2015. However, the Secretary for Labour and Welfare offered his assurance that they would continue to closely monitor the stakeholders’ concerns, the financial position of the Fund and the practical need to improve the protection of the ECAO.

71. It is reassuring to note, from the Annual Report of the ECA Fund Board for the financial year of 2012-13, that the outstanding principal loan of $93 million owed to the government was repayable in three instalments on 1 April 2013, 1 April 2014 and 1 April 2015. Assuming that the ECA Fund Board had repaid part of the loan by instalment payments made on 1 April 2013 and 1 April 2014, there is only one outstanding instalment payment of $32.05 million due on 1 April 2015. As against that, it is encouraging to note, from the same Annual Report, that the ECA Fund Board recorded surpluses of $81.9 million in the financial year ended 31 March 2012, and $104.5 million in the financial year ended 31 March 2013. These surpluses were substantially higher than the total expenditure of the ECA Fund Board in the years in question. Therefore, there is good reason to hope that the amendments to the ECAO to enable the ECA Fund Board to pay interest on damages and costs of the proceedings may be made as early as next year.

¹www.info.gov.hk/gia/general/201304/17/P201304170541.htm”

119.The latest accounts of the Fund, held on trust by ECA Fund Board, that are available are for the financial year ended 31 March 2017[116]. They show that the Fund had a surplus of $124.3 millionfor the year ended 31 March 2017 and an accumulated surplus of almost $838 million up to the year ended 31 March 2017[117]. The accumulated surplus up to the year ended 31 March 2018 may well approach, if not exceed, $1 billion.  The purpose of sections 20C and 20D has been served.  The time is right for consideration to be given for the removal of these provisions from the ECAO and to its restoration to the state it was in, prior to 2002, when the protection provided by the ECA Fund Board was equal to the protection provided by MIB.

120.Just as MIB satisfies the judgment for damages obtained by an injured road user in full, together with interest and costs, so should the ECA Fund Board satisfy the judgment for damages obtained by an injured employee in full, together with interest and costs.

121.Are our employees less deserving of the full protection of our laws than our motorists and road users?

Ms Christina Lee, instructed by Szwina Pang, Edward Li & Co, assigned by Director of Legal Aid, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear

Mr Daniel Chan, instructed by P. C. Woo & Co, for the 4^th defendant

APPENDIX

 DISASTER CATEGORY PSLA AWARDS POST CHAN PUI KI V. LEUNG ON

(HCA 2006/1992, Cheung J., 30 October 1995, Court of Appeal [1996] 2 HKLRD 401)

PARAPLEGIC
JUDGMENT	CITATION	PSLA	ACCIDENT	INJURIES	REMARKS
23/05/1996	1. Ng Kwok Wing v. Lau Ping Kwan and Others (23/05/1996, HCPI1013/1995)	$1,500,000	Struck by falling object- When P was welding, the iron bars lifted by the crane and mounted onto a lorry moved back to a position above P. The iron wires which were used to tie the iron bars to the jib of the crane suddenly broke and the iron bars crushed onto P.	P sustained: (1)   fractured ribs; (2)   diaphragmatic rupture; (3)   fracture of left tibia; and (4)   fracture of T-12 of the thoracic vertebrae and L-1 of the lumbar vertebrae. P is now a paraplegic and wheelchair dependent: (1)   lost movements and sensation of both lower limbs; (2)   great pain at lower limbs due to nerve injury; (3)   double incontinence and impotence; (4)   stiffness at the right shoulder after prolong immobility; and (5)   deep pressures sores on his body. Additional problems encountered by P put the injury into the disaster area: (1)   psychiatric problem; (2)   constant pain in the lower-limbs notwithstanding the loss of function in those parts; (3)   pressure sores; (4)   reduction of his life expectancy; (5)   loss of amenities suffered as he had to live in an old aged home; and (6)   requires constant care for the rest of his life.	Injuries were in gross disability category but the additional problems bring this into the disaster category.
20/3/1997	2. Choi Mei Ho v. Chung Chiu Ying t/a Kin Kee and Others (20/03/1997, HCPI784/1995)	$1,500,000	Fall from height- P fell to the ground from an 8 metre high platform while at work.	P sustained neurological damage and remained complete paraplegic: (1)   complete paraplegia with complete loss of sensation from waist down and paralysis of the lower limbs (permanently wheelchair-bound); (2)   double incontinence; (3)   intermittent painful paraesthesia in the proximal segment of both lower limbs, particularly around the groins and the hips; (4)   very painful and frequent spasm; (5)   needs 24 hour care and attention; and (6)   depression.	Disaster category of disablement
18/07/1997	3. Lai Chi Pon v. Toto Steel & Iron Works Ltd and Others (18/07/1997, HCPI 1149/1995)	$1,500,000 Incomplete paraplegic	Industrial accident- P had an industrial accident.	P lost consciousness and felt severe pain in his back as a result of the accident: (1)   could not move his legs and did not have any feeling in the lower part of his body (regained some limited sensation and movement of his lower limbs after operation); (2)   was found to have a compressed fracture of his vertebra at T11 and T12. P is now an incomplete paraplegic with permanent disabilities: (1)   limited movements of lower limbs; (2)   reduced sensation from his abdomen downwards; (3)   double incontinence; (4)   sexual dysfunction; and (5)   psychiatric illness.	Injury: Falls within the Disaster Category
30/10/1997	4. Ta Xuong v. The Incorporated Owners of Sun Hing Building (30/10/1997, HCPI 496/1995)	$2,000,000	Fall from height- P climbed out of a window at the third floor onto some bamboo scaffolding to trace a leak in a water pipe. P fell as a result of the fracture of defective bamboo scaffolding.	P (aged 37)’s injuries were not described in any detail. However he became quadriplegic after the fall with total paralysis of all 4 limbs. He was found to have: (1)   head and facial movement; (2)   persistent head and shoulder pain and spasms; (3)   has his sight and hearing, and his head and face retain their sense of feeling; (4)   depression is acute and likely to be long lasting; (5)   is only 37 years old with near enough a normal life expectancy.	Disaster category
21/12/1999	5. Wong Hin Pui v. Mok Ying Kit and Another (21/12/1999, HCPI763/1997) [2000] 1 HKLRD 856	$1,000,000 Left hemiplegia	Traffic accident- P was riding his bicycle with an 8kg bag of rice in the front basket. He was struck by a van and knocked off his bicycle.	P (aged 32 at the time of the accident) sustained serious head injury and had 2 operations carried out on his head. P was left with: (1)   left-side hemiplegica; (2)   epileptic seizures; (3)   significant skull cosmetic defect; (4)   post-concussional disorder; and (5)   depressive disorder/ dysthymic disorder due to abandonment by his wife and son and rejection by most of family. Sense of loss and alienation must be considerable: (1)   very little ground for him to regain (only some prospect he may have his young son return to him); (2)   has organised his life impeccably albeit with a simple repetitive regime which provides little entertainment, merely a very limited degree of self-sufficiency.
2/2/2000	6. Chan Yuk v. Dragages Et Travaux Publics (H.K.) Ltd. and Others (02/02/2000, HCPI1066/1998) [2000] 2 HKLRD 795	$1,250,000 Right hemiparesis	Struck by falling object- When P was working on a construction site, pipes pumped with concrete ruptured and fell onto him.	P (aged 44 at the time of the accident) was left in a coma for 18 days and sustained organic brain damage resulted from severe head injury: (1)   right hemiparesis; (2)   a change in his personality; (3)   incontinence of bladder and bowel to a significant degree; and (4)   a moderate degree of cerebral atrophy. P suffered from other minor injuries: (1)   a fracture of the right clavicle; (2)   fractures of the right, 2nd to 5th ribs; (3)   impaired sexual function and loss of libido; (4)   loss of sense of smell and taste; (5)   reduced buccal sensation and loss of sensation in his right cheek; and (6)   some loss of hearing in the right ear. P sustained cognitive deficits: (1)   I.Q. level well below average; (2)   memory significantly affected; (3)   becomes irritable easily and prone to outbursts of temper and aggression against his wife and children; (4)   behaviour somewhat disinhibited and this, with the other aspects of his altered personality, constitute a source of stress and alienation on the part of his family.	Seagroatt J. held injuries to be in the Gross Disability Category but awarded damages in the disaster category.  Not upset on appeal as CA held the categories were not strait-jackets but it would be preferable for any departure to be explained.
17/09/2001	7. Lily Tse Lai Yin and Others v. The Incorporated Owners of Albert House and Others (17/09/2001, HCPI 828/1997)	$1,800,000	Struck by falling object- P was walking with her 3 year old son along the pavement when a canopy of Albert House collapsed above them.  She was hit on the back by a slab of concrete but managed to push her son to safety.	P was diagnosed to have suffered: (1)   a fractured dislocation of the thoracolumbar junction of her spine or T12/L1 leading to complete paraplegia; and (2)   complete sensory loss of both lower limbs up to the L1 to L2 dermatone (3)   wheelchair bound. P also suffers from: (1)   back pain which radiates down to her legs; (2)   numbness in her thighs; (3)   involuntary urination and bowel movements; (4)   haemorrhoids (uses suppositories); and (5)   psychiatric and psychological disabilities.	Injury: Falls within the Disaster Category
28/09/2001	8. Lee Suk Yin and Others v. National Insurance Co. Ltd. (28/09/2001, HCPI 439/2000)	$1,800,000	Traffic collision- P was the 3rd Plaintiff in this action which involved a road traffic accident during which the driver of the car in which he was travelling died.  The car in question overturned after colliding with various road barriers and all 3 passengers sued.	P was 19 at the time of the accident and suffered from: (1)   burst fracture of the C6 vertebra; (2)   severe head injuries involving loss of consciousness; (3)   subdural haematoma and disorientation; and (4)   double incontinence and sexual impotence. The major residues are:- (1)   complete spastic paralysis of the lower limbs with recurrent painful spasms at the patella and ankle; (2)   incomplete paralysis of upper limbs with persistent pain along both scapular region; (3)   complete paralysis of the trunk with diminished sensation and marked muscle wasting; (4)   impairment of higher mental function (5)   wheelchair bound for the rest of his life as an incomplete quadriplegic	Injury: Falls within the Disaster Category
07/01/2002	9. Chan Yuet Lui Rebecca v. The Ritz-carlton Ltd. and Others (07/01/2002, HCPI 658/2000)	$1,700,000	Struck by vehicle- P was struck by a motor vehicle whilst she was walking along the pavement outside the Police Headquarters in Queensway.	P (aged 28 at the time of the accident) suffered a head injury with diffuse axonal injury and was rendered unconscious in the accident: (1)   Glasgow Coma Scale was 11/15; (2)   a fracture dislocation of T8/9 with paraplegia; (3)   fracture of the right femur, laceration of the left knee, and bilateral haemothorax. P’s condition is permanent and the residues are: (1)   paraplegic with no movement except frequent involuntary spasms in the lower limbs; (2)   intermittent back pain; (3)   sensory disturbance below the groin and sphincter dysfunction; (4)   double incontinence requiring catheterization and sexual dysfunction; and (5)   adjustment disorder with depressed mood. Aggravating factors (aggravated the “disaster”): (1)   multiple injuries suffered; (2)   psychiatric disability; (3)   lost marriage and child bearing opportunities; (4)   risk of future neurological and urological complications; and (5)   P’s young age.	Injury: Falls within the Disaster Category
03/05/2002	10. Li Xiao You v. Fugro Geotechnical Services (HK) Ltd & Others (03/05/2002, HCPI 1287/1999)	$1,700,000	Struck by falling object- When P was struck on the back by a plywood board which fell from being transported by a tower crane in the vicinity.	P (aged 25 at the time of the accident) is permanently wheelchair-bound, the effect of a fracture of the T5 and a burst fracture of the T12: (1)   total paralysis of the lower limbs; (2)   loss of feeling from the nipples downwards; and (3)   weakness in the right upper arm; P also suffers: (1)   pain in his right shoulder, particularly when pushing his wheelchair along, and has to support himself when sitting without back support; (2)   pain in his back; (3)   involuntary spasms of the lower limbs; (4)   double incontinence and impotence; (5)   constriction in his chest and breathing difficulties on exertion; (6)   psychiatric disorders and depression (requires counselling).	Injury: Falls within the Disaster Category
01/08/2003	11. Fung Kwok Ki v. Wing Sang Construction Co Ltd and Others (01/08/2003, HCPI757/2002) [2003] 3 HKLRD 201	$1,500,000	Struck by falling object- P was carrying out his work of transporting trunkings for lift installation from the site entrance into the site when a box of tiles fell on him from a height causing him to suffer a severe head injury and loss of consciousness despite the fact that he was wearing a safety helmet.	P (aged 38 at the time of the accident) was unconscious when admitted to hospital: (1)   He was in deep coma with Glasgow Coma Score of 3/15. (2)   Physical examination showed tetraplegia with signs of complete spinal cord injury. (3)   head injury, thoracic spinal injury with paralysis; and (4)   fracture of left femur. The following conditions remained after prolonged treatment: (1)   permanent residual brain damage in the form of impaired higher mental functions, including dysarthria, dysphagia and mild upper limb dysfunction; (2)   permanent paraplegia with double incontinence; (3)   permanent neurogenic urinary and bowel disturbance (requires continued management with Clean Intermittent Catheterization, laxative and suppositories); and (4)   permanent neuropathic impotence.	Injuries: Falls into the upper end of the “gross disability” category and the lower end of the “disaster” category.
3/9/2004	12. Tam Ting Yee v. Lai Ying Cheung (03/09/2004, HCPI1120/2002) [2005] 2 HKLRD 729	$2,000,000 Left hemiplegia & right hemiparesis	Traffic accident	P was comatose with Glasgow Coma Scale of 3/15 immediately after the accident. P sustained serious injuries and is permanently dependent on others: (1)   severely impaired higher mental functions; (2)   severe dysphasia; (3)   epilepsy; (4)   right hemiparesis; (5)   left hemiplegia; (6)   bladder and bowel dysfunction; (7)   left upper and lower limbs suffer complete spastic paralysis; (8)   ability to communicate has been compromised; and (9)   impairment in vision.	General damages were agreed.
28/11/2006	13. Wong Kwun Sang v. Yiu Woon Ming and Others (28/11/2006, HCPI 633/2004)	$2,250,000 Almost total vegetative	Fall from height- P was believed to have lost his footing and fallen to the bottom of the lift shaft while he was installing washers and nuts to the bolts of the metal walings.	P was found to be deeply comatose and sustained: (1)   a fracture of the skull with epidural haematoma; (2)   intracerebral bleeding; and (3)   diffuse brain damage. P received long term care in the infirmary unit of PMH in a vegetative state.  There was some improvement so that at trial he was found to have some slight awareness of people and noises around him.  He remained dependent for all activities of daily living he is: (1)   severely demented; (2)   aphasic; (3)   devoid of cognitive power; and (4)   weakened by spastic tetraplegia from the brain damage.  P also suffered from: (1)   convulsive attacks requiring medication; (2)   double incontinence and impotent
20/06/2007	14. Cham Cheung Sing v. Yung Pak Wa and Others (20/06/2007, HCPI206/2003) [2007] 3 HKLRD 33	$2,000,000	Slip and fall accident- P slipped and fell at the top of a staircase in a restaurant and tumbled down to the bottom on the G/F. P was lifted up and dragged towards or to the back alley of the restaurant to wait for an ambulance without first having supported or immobilized his neck.	P sustained severe head and spinal cord injuries and was rendered tetraplegic: (1)   regained full consciousness about 7 hours after the accident; and (2)   no effective movement below the neck except limited shoulder movement P’s complaints include: (1)   no movements in the four limbs; (2)   complete paralysis, unable to stand, wheelchair bound and bed bound; (3)   sensory disturbance of upper limb and below the upper thorax with impaired temperature sensation, numbness and hyperaesthesia; (4)   pain after sitting for 15 minutes; sacral pressure sores; (5)   double incontinence; (6)   sexual impotence; (7)   psychiatric disturbance, depression and adjustment disorder; (8)   totally dependent in his activities of daily living. Impairment of the whole person was assessed at 98% by Dr Lau and 97% by Dr Yu.	Injury: Falls within the Disaster Category
25/11/2013	15. Kwok Hoi Wan Irene also known as Guo Haiyun Suing By Her Husband and Next Friend Cheng Yuk Ching v. The Hospital Authority (25/11/2013, HCPI 261/2011)	$2,500,000 Almost total vegetative	Medical negligence- P’s pregnancy was abruptly terminated with the intrauterine death of the foetus at 18 weeks gestation. The doctors failed to evacuate the dead foetus but no surgery had been performed at the time.	P had placenta acreta and profuse bleeding after extraction of the foetus and placenta.  Despite blood transfusion, bleeding continued. P suffered severe hypoxic brain damage. P’s neurological status falls within the lower end of minimally conscious state (“MCS”), i.e. show limited but definite evidence of awareness despite profound cognitive impairment: (1)   severely impaired higher mental functions with no consistent response to verbal stimuli; (2)   totally uncommunicative but sometimes would utter unintelligible sounds; (3)   unable to swallow and has to be fed by nasogastric tube; (4)   no spontaneous movement in her limbs although she sometimes raises her arms when yawning; (5)   bedridden and unable to sit in a wheelchair owing to poor neck and trunk control or turn in bed; (6)   doubly incontinent; (7)   completely dependent as regards feeding, bathing, dressing and toileting; (8)   no response in eye, head or limb movement upon request.	Injury: Falls within the Disaster Category