Liu Ruishan By Wu Weixia Her Next Friend v. Fu Yick Fai
Read the full judgment text of HCPI 165/2021 on BabelCite. This High Court CFI judgment was delivered on 14 May 2024.
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HCPI 165/2021 [2024] HKCFI 1278 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO 165 of 2021 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ 1. Introduction 1.1The Plaintiff (“P”) was knocked down by a light goods vehicle bearing registration mark HF8488 (“LGV”) at around 10:30 am on 1 June 2018 (“Accident”). At the time of the Accident, the Defendant (“D”) was the driver of the LGV. 1.2D was subsequently charged in KCCC 3567/2018 for “Causing grievous bodily harm by dangerous driving” under section 36A of the Road Traffic Ordinance Cap 374. After trial, D was convicted of careless driving on 27 August 2019. 1.3As a result of the Accident, P suffered serious injuries and has become a mentally-incapacitated person. These proceedings are brought by P’s daughter (“Madam Wu”) to recover loss and damage against D. 1.4Shortly before the commencement of the trial, by a letter dated 19 October 2023 to P’s solicitors (“19/10/23 Letter”), D admitted liability leaving damages to be assessed. The 19/10/23 Letter was only brought to the court’s attention as an appendix to P’s opening submissions. There was no explanation by D as to why liability was only conceded shortly before the trial. However, as the present case has been fixed for trial on liability and quantum in the running list[1], even where the parties have agreed the issue of liability in advance of trial, the action will nonetheless remain in the list for assessment of damages: PD 18.2 §153. 1.5At the trial, P was represented by Mr John Wright and D by Mr Leon Ho, both of counsel. 1.6Counsel have very helpfully provided a table setting out the differences between the parties on the claimed heads of damage as follows (“Table”)[2]:
1.7As is apparent from the Table, there is a measure of agreement between the parties. The reasons for some of the differences are readily discernable (eg the difference in the claim for pain, suffering and loss of amenities (“PSLA”)). It is perhaps useful to now set out those major or principled differences which require some elucidation:
1.8At the trial, only Madam Wu gave evidence. Pursuant to Master Kot’s order dated 4 August 2023, the joint reports (respectively prepared by the party-appointed neurosurgeons, orthopaedic surgeons and psychiatrists) and the reports prepared by the single joint experts in speech therapy and occupational therapy were adduced without oral evidence. 2. Relevant background 2.1The matters stated in this section are not disputed. 2.2P was born on 4 May 1947. She was 71 years old at the time of the Accident. P and her family members (including Madam Wu) are all Mainland residents. P’s family resides in Guangzhou. 2.3From 2008 until the Accident, P lived predominantly in Hong Kong to take care of her elderly mother. According to Madam Wu, P was continuously granted permits to stay in Hong Kong for 3-month periods. P lived in the Prince Edward area, and would visit her mother who lived in Shatin every 2 or 3 days[3]. 2.4On 1 June 2018, P was walking across the pedestrian crossing on Portland Street (southbound) from east to west near its junction with Boundary Street (eastbound). At the time of the Accident, the LGV turned right from Boundary Street (eastbound) into the junction with Portland Street (southbound) at excessive speed. The right side of the LGV’s bonnet violently hit and collided with P’s right side. After the collision, lost consciousness and sustained injuries to her head, thorax, abdomen, pelvis and skeletons. 2.5After the Accident, P was admitted to the Accident & Emergency Department of QEH. P was on the same day put under the care of the Department of Neurosurgery, Department of Surgery and Intensive Care Unit for urgent treatment and operations. 2.6CT Scan revealed P to have suffered (1) traumatic brain injury, (2) thoracic injuries including fractures at various locations and (3) abdominal, pelvic and other skeletal injuries. In addition, P suffered from right anterior calcaneal tuberosity fracture. P was required to undergo multiple operations and subsequently referred to, inter alia, the Occupational Therapy Department and the Physiotherapy Department. She also received clinical psychological assessments and speech therapy treatments at the QEH. 2.7As P’s family was not able to pay for the non-resident medical expenses of QEH, it was urged by the hospital that P should be discharged from the hospital as soon as practicable. At the time of her discharge from QEH on 15 September 2018, she was wheelchair bound with cognitive impairment. P was admitted into a nursing home in Guangzhou as she refused to eat and needed the insertion of nasogastric tube. 2.8Whilst back in Guangzhou, P on divers dates and periods received outpatient treatments or was hospitalized. As may be noted from the Table, such pre-trial medical treatments in the Mainland are agreed. The point to note, in my view, is that such treatments were carried out on a sporadic and as-needed basis, namely when her conditions deteriorated, and they were targeted principally at addressing P’s deterioration at the time rather than her long-term rehabilitation. 3. Expert evidence 3.1A summary of the expert evidence is usefully set out in Mr Ho’s Opening Submissions. The matters stated in this section are largely taken from that summary, supplemented by matters highlighted by P. (i) Expert evidence on neurosurgery 3.2P was examined by Dr Ng Wing Kit (instructed by P) and Dr Kan Yiu Ting (instructed by D) on 27 September 2022. The neurosurgery experts reached agreement on all areas of their opinion. 3.3The experts agreed that the Accident caused severe brain injury: unconscious for weeks with undeterminable duration of post traumatic amnesia, fracture skull, extensive subarachnoid haemorrhage, subdural hematoma, frontal lobe contusion, and multiple fractured ribs. Insult to the brain was further aggravated by hypoxia and hemodynamic instability due to pneumothorax and hypovolemic shock caused by fracture pelvis. The brain injury was classified as “extremely severe” - the highest on scale of 6. Grave psychomotor impairment was the rule following this nearly fatal brain injury. 3.4In terms of future care, the experts opined as follows:
3.5P’s whole person impairment was assessed at 100% and the experts considered P a mentally incapacitated person. 3.6P was expected to live to 81 years old. This opinion was derived from the following:
3.7The neurosurgeons’ opinion on P’s life expectancy has given rise to disagreements on what should be the appropriate multiplier. (ii) Orthopaedic experts 3.8P was examined by Dr Lam Chi Keung Johnson (instructed by P) and Dr Wong Kwok Shing Patrick (instructed by D) on 30 September 2022. The orthopaedic experts expressed the following opinions. 3.9The Accident caused severe brain trauma, bilateral multiple rib fractures with flail chest in right chest, fracture pelvis and acetabulum, right clavicle fracture and right anterior calcaneal tuberosity fracture. 3.10The treatment prescribed and received was appropriate. P’s orthopaedic injuries had reached maximal medical improvement. 3.11In terms of P’s conditions at the time of the examination, P could not articulate the complaints herself, but the problems and conditions stated by her family were consistent with residue of severe brain trauma, contributed by residue of orthopaedic injuries. Dr Lam opined that the position of right ankle seemed to be “higher” than the left ankle, which was likely due to some adduction on right hip with apparent shortening of right lower limb. Dr Wong opined that the asymmetrical positioning of the hips and ankles should be due to inability of P to cooperate to position well rather than reflecting any gross bone or joint deformity. 3.12Dr Lam and Dr Wong respectively assessed orthopaedic whole person impairment at 10.6% and 8% and they agreed that P was not fit for any gainful employment. (iii) Expert evidence on psychiatry 3.13The Plaintiff was examined by Dr Ting Sik Chuen (instructed by the P) and Dr Yu Wai Tak (instructed by the D) on 28 September 2022. The psychiatric experts agree on all aspects of their opinion. 3.14The Accident caused major neurocognitive disorder due to traumatic brain injury and the prognosis was poor without any evidence of recovery. 3.15In terms of future care, P should continue to stay in the nursing home with intensive nursing care. She was recommended to have regular assessment by a speech therapist on feeding advice, as she was prone to have choking or aspiration of food to trachea leading to pneumonia. Dietitian was required to be consulted for a balanced diet with adequate nutrition. Regular psychiatric assessment, medical assessment and physiotherapy were required. (iv) Expert evidence on speech therapy 3.16The Plaintiff was examined by Dr Poon Man Wai May (single joint expert) on 26 September 2022. Dr Poon summarized the Plaintiff’s performance during her examination as follows:
3.17Dr Poon opined that P suffered 12-21% whole person impairment contributed by her speech impairment (equivalent to 35-59% of voice/speech impairment contributed by reduced functional efficiency). 3.18Dr Poon was of the view that the nursing home environment in Guangzhou might not be satisfactory in terms of boosting P’s needs of functional communication related to daily activities and professional support, and moving to a nursing home in Hong Kong might be a better alternative for receiving long-term speech therapy, language, communication and feeding treatments. 3.19The speech therapy frequency recommended by Dr Poon was as follows:
3.20Dr Poon suggested that the charges for speech therapist ranged from HK$900 to HK$1,500 per 45-minute session. (v) Expert evidence on occupational therapy 3.21P was examined by Mrs Tsang Lau Kit Ping Alice on 29 September 2022. According to Mrs Tsang:
4. PSLA 4.1D had agreed P’s claim for HK$2,000,000 pleaded in the Revised Statement of Damages (“RSOD”). However, P sought to amend the RSOD to seek a higher sum. I do not understand Mr Ho to have objected to P seeking a sum higher than that pleaded in the RSOD, but he submitted that an award of HK$2,000,000 was appropriate. 4.2There is no dispute between the parties that the present case falls within the disaster category. P relies principally on the case on Ng Tat Kuen v Tam Che Fu [2019] HKCFI 1191 as a comparable case. 4.3In Ng Tat Kuen, the plaintiff sustained what were described as disastrous injuries to his cervical spine. The plaintiff’s injuries were described by Bharwaney J as follows:
4.4After reviewing the various cases on the upward adjustments to be made to the four injury categories set out in Lee Ting Nam v Leung Kam Ming [1980] HKLR 657, the learned Judge in Ng Tat Kuen concluded that as at July 2017, the award for injuries falling within the disaster category should be from HK$1,325,000 upwards. Having reviewed the cases summarized at the appendix of the judgment, the learned Judge awarded the sum of HK$2,250,000. 4.5Ng Tat Kuen was decided in May 2019. According to Mr Wright, that award would now be equivalent to around HK$2,400,000, but as the injuries suffered by P were slightly less serious than those of the plaintiff in Ng Tat Kuen, he submitted that an award of HK$2,200,000 should be made. 4.6In addition to agreeing with Mr Wright that the injuries suffered by P were slightly less serious than those of the plaintiff in Ng Tat Kuen, Mr Ho referred to Ng Tat Kuen §90 for Bharwaney J’s observation that the court should have regard to the age of the plaintiff, and that, for comparable injuries, an award should be less for a more elderly plaintiff. The plaintiff in Ng Tat Kuen was in his 50s and P was in her 70s at the time of the Accident. 4.7Mr Ho further submitted that I should take into account the fact that, unlike Ng Tat Kuen, there is some prospect of a degree of rehabilitation for P, in particular where D is agreeable to an award for the relevant medical expenses for such rehabilitation (subject to the issue of multiplier). 4.8I think the submissions made by Mr Ho are well-founded. There is only a 10% difference between the parties which, as a matter of impression, may easily be accounted for by the distinguishing features identified by Mr Ho. In my view, an award of HK$2,000,000 is appropriate for PSLA. 5. Pre-trial loss and expense (i) Medical expenses in Hong Kong: The Waived Fees issue 5.1The documentary evidence before the court is as follows. 5.2In a letter dated 6 October 2023 to HA, P’s solicitors stated, inter alia, the following:
5.3In another letter dated 7 October 2023 to HA, P’s solicitors stated, inter alia, as follows:
5.4HA replied on 17 October 2023 and pointed out, inter alia, as follows:
5.5In his Closing Submissions, Mr Ho relied on Schneider v Eisovitch [1960] 2 QB 430 at 440, where Paull J held as follows:
5.6During oral closing, Mr Ho’s only argument was premised on the issue of (the lack of) undertaking to pay over to HA any awarded sum. He submitted that Madam Wu has not given an undertaking, and even were one given, as P and Madam Wu are not Hong Kong residents and not within jurisdiction of the court, that undertaking is clearly inadequate. 5.7The documentary evidence shows beyond peradventure that were P successfully in recovering the Waived Fees from D, HA would revoke the waiver given for the Waived Fees. As is plain from HA’s letter, the Waived Fees are now subject to review pending the outcome of these proceedings. 5.8I do not believe D may derive assistance from Schneider, as the character of services gratuitously given by a friend is fundamentally different from that of the Waived Fees. 5.9In my view, the Waived Fees are recoverable. On the evidence, I do not believe there is anything to suggest that P is seeking a windfall, in that the Waived Fees, when recovered from D, would not be paid over to HA. P’s solicitors raised the issue with HA on their initiative (presumably acting on instructions) which is inconsistent with any suspicion that the claim for the Waived Fees is motivated by a desire to pocket a windfall. 5.10In the circumstances of the present case, in particular having regard to the documentary evidence, it seems to me that the position taken by D is not the most attractive. However, in order to dispel any residual doubt harboured by D, it seems to me sufficient to direct P’s solicitors to provide a copy of this judgment to HA within 3 days, as requested by HA in its letter dated 17 October 2023. No doubt, HA’s review of the Waived Fees will then be conducted in the light of this judgment. (ii) PRC nursing home charges 5.11The difference between the parties is that P’s figure is calculated to the commencement of the trial, whilst D’s figure has recognized that the nursing home charges are continuing and is therefore calculated to the time of judgment. I accept D’s figure. (iii) Tonic Food 5.12P’s claim for tonic food is comprised of three elements, namely milk powder, soup and “God of Sun” oral liquid. At the trial, Madam Wu fairly accepted that the purported benefit of the “God of Sun” oral liquid was not scientific and made perhaps a “psychological” difference to P’s family. 5.13Mr Ho made the following submissions. P’s argument that the tonic food is a substitute for solid food presumably applies to the consumption of milk powder and soup, as the “God of Sun” oral liquid is not intended to be a meal substitute. As the tonic food are substitutes of, but not additions to solid food, by consuming the milk powder and soup, P would not need to consume solid food (which P would consume if the Accident did not take place). Essentially, P switched her diet pattern from solid food to liquid food as a result of the Accident. In the absence of evidence that liquid food is more expensive than the original food, P is not entitled to additional damages for tonic food. 5.14However, D accepts that P is entitled to a nominal sum on tonic food even in the absence of the necessary evidence required as to the advisability or suitability of the tonic food, if the injured person and his relative reasonably believe the same to be helpful to the injured person’s recovery. The sum offered by D is a concession representing 18 months of consumption of tonic food. 5.15The “God of Sun” oral liquid comprises a minor portion of P’s claim (around 16.7%). In view of P’s occasional (and unpredictable) difficulties in consuming solid food, it seems to me (1) it is reasonable for P’s family to regard milk powder and soup as necessary and (2) Mr Ho’s analysis that the tonic food can completely replace solid food is unsound, as it cannot be predicted with any certainty that for any given meal P would or would not be able to consume solid food (§3.16 above). I acknowledge I have to take into account the questionable efficacy of the “God of Sun” oral liquid. Doing the best I can, I allow RMB65,000 under this head of damage. (iv) Minor differences 5.16I do not propose to dwell on the minor differences between the parties on (1) other special damages and (2) medical consultation in September 2022). I will simply adopt D’s figures which are more generous than those claimed by P. 6. Future loss and expense 6.1I will first deal with two general issues, namely (1) the appropriate multiplier for future expenses and (2) whether it is reasonable for P to insist on receiving treatment in Hong Kong. (i) Appropriate multiplier 6.2As stated at §3.6 above, the neurosurgeons are of the opinion that a 75-year-old female in Hong Kong is expected to live another 17 years. That expectation is derived from the Projected Hong Kong Life Table for Females[4]. As P’s traumatic brain injury would reduce her life expectancy by 65%, the experts reasoned that P’s life expectancy as assessed in 2022 would be 81 years old. 6.3P’s case on multiplier is as follows. At the time of the trial, P is aged 76. According to the 2024 Life Table, P would have a life expectancy of 16.29 years before reduction due to her condition. Applying the reduction, P’s expectation of life would be [16.29 years x 35% =] 5.7 years. One then needs to refer to Table 2 (Multipliers for Pecuniary Loss for Life (Females)). For a female aged 76, and applying a discount rate of 1% (for a person with needs of less than 10 years but more than 5 years), the correct multiplier is 14.51 to be reduced by 65%, namely 5.078. 6.4Conversely, D’s case is based on the expert’s assessment that P is expected to live until 81 years old (ie until 4 May 2028). As the trial was conducted in November 2023, P’s remaining life expectancy is slightly less than 4.5 years and around 4 years at the time of judgment. Referring to Table 28 (Multipliers for Pecuniary Loss for Term Certain), and again using a 1% discount rate, the term multiplier for 4 years is 3.92. 6.5As the parties were content to use round figures, the above explain the difference between the positions respectively advocated by P and D on the appropriate multiplier, namely 5 and 4. 6.6Both parties referred to Ng Tat Kuen. 6.7P referred to Ng Tat Kuen §71:
6.8Conversely, D referred to Ng Tat Kuen §§16-17:
6.9It is P’s case that D’s use of Table 28 is incorrect. 6.10In my view, I prefer D’s calculation. Ng Tat Kuen §§16-17 is the part of the judgment where Bharwaney J expressly discussed the issue of multipliers. Conversely, the passage referred to by P is the learned Judge’s discussion on the future cost of alternative accommodation. 6.11I do not regard D’s calculation is disadvantageous to P. As pointed out at Ng Tat Kuen §§77 to 78, the use of Table 28 (which is D’s methodology) would usually provide a multiplier which is “too high”. The learned Judge said:
6.12Notwithstanding the learned Judge’s discussion at Ng Tat Kuen §71, at Ng Tat Kuen §82, the learned Judge’s assessment of the cost of future alternative accommodation was based on the multiplier calculated by the methodology set out at §§16-17 (a whole life multiplier of 8.61), ie D’s methodology. 6.13Further, as pointed out by Mr Ho, the computation of life multiplier in Kok Wai Leung v Ho Tin Building Material Ltd & Anor [2022] HKCFI 1183 is consistent with that in Ng Tat Kuen:
6.14For the above reasons, I accept D’s argument that the appropriate multiplier in the present case is 4. (ii) Treatment in Hong Kong or the Mainland 6.15It must be reiterated that D’s position is that P is entitled to most of the medical treatment recommended by the experts, but such treatment should take place in the Mainland: §1.7(2) above. 6.16I was told by counsel that they were not aware of any judgment in Hong Kong deciding whether a non-Hong Kong resident can claim medical treatment expenses (together with all associated expenses) in Hong Kong for an extended period. 6.17Mr Ho in his closing submissions referred to a Malaysian case. In Chai Yee Chong v Lew Thai [2004] 2 MLJ 465, the Malaysian Court of Appeal reviewed cases in which Malaysian plaintiffs claimed expenses of medical treatments done in Singapore (which were more expensive). The Malaysian Court of Appeal said:
6.18It therefore seems to me that it is for P to prove that it would be reasonable for her to insist on receiving treatment in Hong Kong. 6.19In my view, P has failed to show that it is reasonable for her to insist on receiving treatment in Hong Kong for the following reasons:
6.20Conversely, there are a number of reasons for P to receive treatment in the Mainland:
6.21For the above reasons, there are practical obstacles in putting in place and executing a treatment plan in Hong Kong and one additionally has to take into account the intangibles of uprooting P (who only has a limited period to live) away from her family. If P were to receive treatment in Hong Kong, it is envisaged that she will be living in a rented flat and taken care of by carers (if employing them were possible). 6.22On the other hand, it seems to me that there are obvious advantages for P to spend her remaining life at her Guangzhou home (remodeled to cater for her needs). She will be amongst her filial children (§3.6 above) and still be able to receive a holistic treatment. It is perhaps more cumbersome to organize and coordinate the treatment regime, but P’s family will have the financial resources to engage assistance for that purpose. As to the quality of the treatment, I am reluctant, in the absence of proper evidence, to conclude that treatment in the Mainland is necessarily inferior to Hong Kong. It must also be borne in mind that the treatment contemplated is purely rehabilitative and does not involve a life-endangering procedure such as removing a brain tumour. 6.23In my view, P has failed to demonstrate that it is reasonable for her to insist on receiving treatment in Hong Kong. (iii) Costs of case manager 6.24The difference between the parties lies in the appropriate multiplier. I adopt D’s figure. 6.25I must point out that the figure is based on the costs of engaging a case manager in Hong Kong. Mr Ho did not contend that the costs should be lowered on the basis that the case manager might be engaged in the Mainland. (iv) Costs of healthcare 6.26The differences between the parties are (1) whether P should receive treatment in Hong Kong or (2) whether P should remain in the nursing home which would then obviate the need to hire carers. 6.27On the evidence before me, I believe it is reasonable to relocate P back to her home with suitable remodeling. I have not lost sight of the evidence of the neurosurgeons and the psychiatrists that P should continue to stay at the nursing home, but it seems to me that their opinion was premised on a “sustenance” basis. Conversely, I accept the observations made in the Occupational Therapist Report that the conditions at the nursing home are suboptimal for the purpose of rehabilitation. P’s hair has been shaved, she has to share a room with strangers and there is a lack of rehabilitation activity. As pointed out in the Occupational Therapist Report, P’s current suboptimal living conditions is due to the financial limitations of P’s family. 6.28I have already stated above that there are obvious advantages for P to spend her remaining life at her Guangzhou home, and it would be unrealistic for P’s family to take care of P without any assistance. P’s home consists of 2.5-storey building and it appears to me that it can accommodate 1 day-shift health care assistant and 1 live-in helper to take care of P, as recommended in the Occupational Therapist Report at a cost of RMB 36,000 per month (Occupational Therapist Report page 35). I allow [RMB 36,000 per month x 12 months x 4 years =] RMB1,728,000. (v) Costs of accommodation 6.29P’s claim is premised on renting a 82 m2 flat in Hong Kong. As I am of view that P should be relocated back to her home in Guangzhou, a reasonable sum should be awarded for remodeling to cater to P’s specific needs. According to P’s family member, RMB200,000 is required (Occupational Therapist Report Section 3.11). I award that sum. (vi) Costs of technical aids 6.30D disputes the claims for some of the items such as the need to purchase a television, TV programme boxes and a computer tablet. I accept D’s submissions that the former two would only be required were P to move into a newly-rented flat in Hong Kong and that a computer tablet is probably not necessary for P. The other differences are accounted for by the multiplier issue. I adopt D’s figure. 6.31The costs are quantified on the basis that the technical aids are to be procured in Hong Kong. Mr Ho has not asked for a discount on the basis that they are to be procured in the Mainland. (vii) Costs of medical consumables 6.32The difference between the parties is accounted for by the multiplier issue. I adopt D’s figure. 6.33The costs are quantified on the basis that the medical consumables are to be procured in Hong Kong. Mr Ho has not asked for a discount on the basis that they are to be procured in the Mainland. (viii) Costs of non-medical equipment 6.34D accepts that this claim should be allowed were P to move out of the nursing home but contends that they should be subject to a multiplier of 4 years. I accept the calculation set out at D’s Opening Submissions §40. I award a sum of HK$42,327. No discount is sought by Mr Ho on the basis that the equipment is to be procured in the Mainland. (ix) Costs of utilities 6.35D accepts that this claim should be allowed were P to move out of the nursing home but contends that they should be subject to a multiplier of 4 years. I accept the calculation set out at D’s Opening Submissions §42. I award a sum of HK$26,160. No discount is sought by Mr Ho on the basis that such expenses are to be incurred in the Mainland. (x) Costs of transportation and socialization expenses 6.36The difference is accounted for by the multiplier issue. I accept D’s figure of HK$108,000. No discount is sought by Mr Ho on the basis that costs are to be incurred in the Mainland. (xi) Costs of family members visiting P 6.37As I am awarding damages on the basis that P will reside at her Guangzhou home, no claim is allowed under this head. (xii) Costs of medical treatment 6.38The difference between the parties are three-fold. The first is accounted for by the multiplier. The second is accounted for by D’s contention that the need for clinical psychology and family therapy is not based on opinion of any medical expert: Yuen Hok Mo v VSL Hong Kong Limited & Anor, HCPI 275 of 2009, 6 January 2010 at §§16(ii) and 20. The third is D’s calculation adopted the average of the rates quoted by the experts whilst P adopted the highest. I accept D’s submissions, in particular in the present circumstances where the medical treatment is to be procured in the Mainland (the costs of which are presumably lower than those in Hong Kong). I adopt the figure of HK$503,720. (xiii) Costs of transportation (treatment) 6.39P’s claim is based on 600 treatments at HK$500 per treatment. Given the uncertainties on the treatment plan in the Mainland (as to the distance between P’s home and the treating doctors), I would make an award on a basis more generous than that offered by D. I allow a sum of RMB100,000. (xiv) Costs of tonic food 6.40For the reasons set out at §5.12 to 5.15 above, I allow a sum of RMB60,000. (xv) Costs of fund manager 6.41In Lai Pui Ling v Ho Chi Keung [2016] 3 HKLRD 329, G Lam J (as he then was) held at §69 that as the future loss to be awarded (around HK$5 million) was not particularly large, there was no need to engage any fund manager costs. P’s future loss claim in this case is not particularly high, and the future period (4 years) is not particularly long. I accept Mr Ho’s argument that this claim should not be allowed. 7. Conclusion 7.1In summary, I have assessed P’s claim as follows:
7.2Mr Wright had asked for an exchange rate of HK$1.2 to RMB1, on the basis that the renminbi is weakening against the Hong Kong dollar over the last few months. It seems to me that Mr Wright’s concern is mainly directed at the pre-trial expenses incurred in the Mainland. As stated at Hong Kong Civil Procedure 2024 Note 6/2/5A, where a claim is based on tort, the principles to be applied in ascertaining the currency of loss are those of restitutio in integrum and reasonable foreseeability. In so far as the pre-trial losses and expenses are concerned, they were incurred over a period (in particular the nursing home charges). During the relevant period, the exchange rate fluctuated between 1.09 to 1.24 and there was a considerable duration whether the RMB-HKD exchange rate is below 1.20. As no attempt was made by Mr Wright to show that his proposed exchange rate is a fair “weighted average”, I propose to adopt the course suggested by Mr Ho, namely to leave the issue of rate of conversion to the enforcement stage (if necessary): Chak Kak & Anor v Pacrim International Capital Inc, CACV 366 of 2007, 4 November 2008 §6. I also note that it is open to the court to grant judgment in RMB: Lai Jianxing v Sakoma (HK) Ltd & Ors, HCPI 757 of 2009, 9 September 2011 §§70-72. 7.3There will be judgment for P against D in the sums of HK$4,167,657 and RMB2,702,948 together with interest on special damages at half judgment rate from the date of the Accident to the date of Judgment and interest on general damages at 2% from the date of the writ to the date of judgment. 7.4I also make a costs order nisi that D is to pay to P the costs of this action (including any costs reserved) to be taxed if not agreed. P’s own costs are to be taxed in accordance with Legal Aid Regulations.
Mr John Charles WRIGHT instructed by Messrs. Poon, Sum & Cheng, assigned by Director of Legal Aid for the Plaintiff Mr Leon HO instructed by Messrs. Lau, Chan & Ko for the Defendant |
Cases cited in this judgment