Tsoi Yau Ya v. Chan Kwok Hung and Another

HCPI001388/1999

HCPI 1388/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1388 OF 1999

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Coram: Deputy High Court Judge Fung in Court

Date of Hearing: 13-17 May 2002, 21-22 May 2002

Date of Judgment: 13 June 2002

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J U D G M E N T

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1.The plaintiff was knocked down by a double decker bus driven by the 1st defendant in the employment of the 2nd defendant. The trial is on both liability and quantum. The 1st defendant denied negligence.

I. LIABILITY

The Plaintiff's Case

2.The locus in quo was the bus lane of Canal Road East between the junctions of Hennessy Road and Leighton Road. Canal Road East has two south bound lanes in the direction of Leighton Road and Happy Valley: one lane open for all traffic and one lane restricted for buses only ("the Bus Lane"). The Bus Lane was enclosed by three flyovers : one each on either side and one above (see photograph A in Bundle p.4151). At the entrance of the Bus Lane off Hennessy Road, it was only wide enough for one bus to pass, then it widened to allow two buses to pass (see photograph C in Bundle p.4150). There were a series of bus stops along the left side of the Bus Lane (see photograph C in Bundle p.4151). There was access to and from the Bus Lane on either side through underneath the flyovers (see photographs A to D in Bundle p.4154). There was no designated pedestrian crossing on the Bus Lane.

3.The plaintiff did not give evidence. An independent witness Mr Cheung Yat Shing ("PW3") described how the accident had occurred.

4.On 23 October 1997 at about 6:15 p.m., PW3 was walking from Times Square to the Bus Lane. The plaintiff was walking at normal speed in the front left of PW3. PW3 walked to the kerbside of the Bus Lane at an opening between the railing and a bus stop (see photographs A & C in Bundle p.4154). There was a No.112 China Motor Bus ("the CMB") stopping on his right, obstructing his view of the oncoming traffic on the right. PW3 took one to two steps from the kerbside, and was about 6 ft from the front of the stationary CMB. He saw the 1st defendant's bus at 2 to 3 ft behind the front of the CMB, travelled at about 20 to 30 kph. The plaintiff was 5 to 6 paces in the front left of PW3, about 9 to 10 ft from the CMB. The plaintiff walked on, keeping her head down without looking to the right. Her right arm was hit by the front left corner of the 1st defendant's bus. She was thrown out by the collision and fell down. The 1st defendant's bus stopped abruptly at 7 to 8 m (or 1/2 or 2/3 bus' length) past the front of the CMB (see photographs A & B in Bundle p.4150). The plaintiff was lying in the left front of the 1st defendant's bus (see photograph B in Bundle p.4153).

5.PW3 said the 1st defendant's bus was travelling faster than buses would normally do at that section of the Bus Lane. Usually, buses would brake and slow down to 10 kph or so upon reaching the crossing point but the 1st defendant's bus did not slow down before the collision. It had been travelling straight without swerving to the left or right. PW3 did not hear any sound of the horn or flashing headlight before the accident. PW3 said the 1st defendant did not immediately alight to look at the plaintiff.

The Defendants' Case

6.The 1st defendant said he was driving the bus along Hennessy Road, and then he turned left into the Bus Lane. After making the turn, he accelerated and travelled at 25 to 30 kph until he reached a bus on his left behind the stationary CMB. He took his right foot off the accelerator and placed it over the brake pedal without applying the brake. Upon reaching the rear of the CMB, he saw some people cross the Bus Lane. He stepped on the brake, sounded his horn and flashed the headlights three times to warn the crossing pedestrians. After the people had crossed the road, he drove on slowly while slightly applying the brake. The speed was 10 to 15 kph. At about 6 to 7 m away from the front of the CMB, he saw the plaintiff walk out from the front of the CMB into the Bus Lane. He applied the brake immediately but the front left corner of his bus still hit the plaintiff. He immediately alighted to look at the plaintiff.

7.The 1st defendant indicated by a "X" on Exhibit D1 (photograph B in Bundle p.4150) the position of plaintiff when he first saw her, which was more or less the same position where she was hit.

8.The defence also called two independent witnesses. Ms Leung Chiu Chun ("DW2") was travelling on board the 1st defendant's bus at the time of the accident. DW2 was in the lower deck, sitting on the isle seat behind the internal staircase on the driver side. The 1st defendant's bus was moving slowly and there were a lot of people moving in front of the bus. On the left of the 1st defendant's bus was the CMB picking up passengers. Suddenly, DW2 saw a shadow and it was hit by the corner of the bus. DW2 heard the sound of something falling and people shouting. The 1st defendant stopped the bus immediately. The bus did not jolt as it was moving slowly. The 1st defendant immediately alighted to see the injured person.

9.Ms Tong Yuk-king ("DW4") was a pedestrian. She was standing on the opposite side of the Bus Lane, facing the plaintiff. She saw the plaintiff walk out in front of the stationary CMB when the 1st defendant's bus was approaching. At that time, the plaintiff was looking to her left attending to her handbag, rather than looking to the right where the 1st defendant's bus was coming from. DW4 said she did not think there was anything the 1st defendant could have done to avoid the accident because that the view of the plaintiff was blocked by the CMB and she suddenly walked out onto the Bus Lane.

Whether the 1st Defendant was Negligent

10.There is no dispute that the accident occurred, and that the plaintiff did not look to her right to watch out for oncoming traffic before she walked out onto the Bus Lane. The issues are :

(a) What was the speed of the 1st defendant's bus when he was approaching the CMB;

(b) What was the appropriate speed that a reasonably cautious bus driver would have engaged at the material time.

11.The following facts are not in dispute :

(a) The Bus Lane was heavily crossed by pedestrians;

(b) There was no designated pedestrian crossing along the Bus Lane;

(c) The 1st defendant was aware of the fact that pedestrian would cross the Bus Lane even when buses were approaching;

(d) After the accident, the words "Look Right" were painted on the surface of the Bus Lane at the crossing point of the accident.

12.Counsel for the defence submitted that the 1st defendant had taken all the necessary precaution that a reasonably cautious bus driver ought to have in the circumstances :

(a) Travelling at a slow speed at 10 to 15 kph;

(b) Keeping a proper look out for people crossing the road;

(c) Sounding horn and flashing headlights.

13.It was submitted that the accident was caused entirely by the plaintiff suddenly walking onto the road without looking and it was not the duty of the 1st defendant to ensure he was in a position to avoid such risk.

14.Counsel for the defence submitted that there was support for the 1st defendant's evidence that he was doing 10 to 15 kph :

(a) DW2, the passenger on board, said the bus was travelling slowly;

(b) DW2 said the bus did not jolt when stopping after the accident;

(c) There was no skid mark left by the 1st defendant's bus.

15.Counsel for the defence submitted that PW3's estimate of the speed of the 1st defendant's bus at 20 to 30 kph was unreliable :

(a) PW3 could only see the 1st defendant's bus when it was 2 to 3 ft before the front of the CMB, and given that the 1st defendant's bus had stopped 7 to 8 m past the front of the CMB, PW3 would only have sight of it moving 20 odd ft, too short a distance to judge the speed;

(b) PW3's evidence that the 1st defendant did not immediately alight from the bus to look at the plaintiff was contradicted by the two independent witnesses DW2 and DW4 and it affected his reliability generally;

(c) The stopping distance required for the speed of 20 kph was longer than what had emerged from the evidence.

16.According to PW3, the plaintiff was 9 to 10 ft in front of the CMB before the accident. The 1st defendant said he first saw the plaintiff when he was 6 to 7 m away from the front of the CMB. Adding the two together, the maximum stopping distance was about 10 m.

17.It was submitted by counsel for the defence that, according to the table for stopping distances in Bingham and Berryman's Motor Claims Cases (11th Edition, 2000) at para.9.26, it could be deduced that for the speed of 20 kph or 12.5 mph, the thinking distance would be 12.5 ft and the braking distance would also be 12.5 ft, i.e. a total stopping distance of 25 ft or 8 m. It was further submitted that according to the Highway Code at p.86, for a heavy vehicle, the distance may be twice the distance needed by a car. Hence, the stopping distance would be 16 m for the 1st defendant's bus.

18.With respect, what belies the argument of counsel for the defence is that in assessing the stopping distance of the bus, I have to first accept the evidence of the 1st defendant of how far away from the CMB when he first saw the plaintiff. It begs the question of whether the 1st defendant is credible, just as whether he is right that his speed was 10 to 15 kph.

19.Still on stopping distance, the 1st defendant did indicate by the "X" on Exhibit D1 the position of the plaintiff when he first saw her. The "X" is at the front of the 1st defendant's bus, and the 1st defendant's bus was about 2/3 of its length past the front of the CMB. Hence, the distance between the "X" and the front of the CMB is about 8 m. Adding this distance of 8 m to the distance of 6 to 7 m between the front of the CMB and the 1st defendant's bus, the total distance will be 15 m, which more or less tallies with the stopping distance deduced from Bingham. Of course, counsel for the defence submitted that the defendant was not quite correct when he said the "X" was both the point where he first saw the plaintiff and also where the plaintiff was hit, as the plaintiff was bound to have moved forward before the collision. Be that as it may, it illustrates the wholly unsatisfactory effect of reckoning distances from crude estimates of witnesses instead of from any scientific measurements.

20.Having heard the 1st defendant, I do not accept him as a credible or reliable witness :

(a) While he said he was 6 to 7 m from the front of the CMB when he first saw the plaintiff, he had given three demonstrations ranging from 7 1/2 to 12 ft;

(b) He had given at least three inconsistent versions as to when he started to apply the brake on the Bus Lane: (i) when he began to drive past the bus behind the CMB on his left; (ii) somewhere between that bus and the CMB on his left; (iii) when he was levelling up with the front of the CMB.

21.Counsel for the plaintiff submitted that the 1st defendant's memory as to when he began to apply the brake might have been vague due to the lapse of time. I consider that it was such an important aspect of the accident that one should have a better memory of it. I do not accept the 1st defendant's evidence that he was only doing 10 to 15 kph.

22.As I see it, the real conflict is the evidence of PW3 that the 1st defendant's bus was too fast at 20 to 30 kph, or DW2's evidence that it was slow.

23.DW2 said she boarded the 1st defendant's bus at Hennessy Road where it was travelling at faster speed. In cross-examination, she was asked was that whether she sensed the bus was travelling at slow speed on the Bus Lane. She said yes. I find that DW2 was saying the 1st defendant's bus was slow in comparison with its speed on Hennessy Road.

24.DW2 also said the bus did not jolt when it stopped. The 1st defendant said he almost immediately jam on the brake forcefully although the motion would not have been great on the passengers. I find that even when the bus is not travelling at high speed, a sudden application of the brake would have caused some motion.

25.Granted the reckoning of speed by either PW3 or DW2 must have been based on their impression at the time, I prefer the evidence of PW3 because :

(a) PW3's assessment of the speed of the 1st defendant's bus was based on the comparison with the speed that buses would normally travel at the relevant section of the Bus Lane and PW3 had driving experience of 10 years;

(b) DW2's assessment of the speed of the 1st defendant's bus was based on the speed it was previous doing on Hennessy Road and DW2 had no driving experience.

26.PW3 was cross-examined as to the pace of the plaintiff before the accident. PW3 at one stage said the plaintiff was walking slowly, but in his witness statement, he said she was walking normally. I find that the plaintiff was walking at normal speed and was not dashing out to the Bus Lane.

27.Counsel for the defence submitted that even accepting the evidence of PW3 that the 1st defendant's bus was travelling at 20 to 30 kph, it was still a reasonable speed. Counsel referred to Lau Shun Hing v. Ng Ching Hung [1991] 1 HKC 179. In that case, the defendant (appellant) was driving a light goods vehicle at 25 to 26 mph when he saw a maxicab stop to set down and pick up passengers about three lengths of his vehicle by the roadside on the left. When his vehicle was about 2 ft from the front of the maxicab the plaintiff (respondent) suddenly ran out and was hit by the defendant's vehicle. The defendant did not see the plaintiff before the accident as his view was blocked by the maxicab. There was no evidence before the trial judge to indicate that the defendant would have been able to see more than he admitted in his statement to having seen. The trial judge apportioned the blame 70% to the plaintiff and 30% to the defendant.

28.On appeal, counsel for the respondent referred to Fardon v. Harcourt-Rivington (1932) 146 LT 391, 392 per Lord Dunedin :

"The root of this liability is negligence and what is negligence depends on the facts with which you have to deal. If the possibility of the danger emerging is reasonable apparent, then, to take no precaution is negligence but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then, there is no negligence in not having taken extraordinary precautions."

and argued that having observed the maxicab stopped, and given the recognized possibility that a passenger stepping down from a maxicab which had stopped to allow him to alight might then immediately attempt to cross the road, it was incumbent upon the defendant to sound his horn and moderate his speed.

29.Power JA referred to Moore (an infant) v. Poyner [1975] RTR 127 in which an infant who ran on to the road way from in front of a parked coach was struck by a passing car and observed that Buckley LJ, having indicated that the driver in order to have put himself in a position where he could have stopped and thus avoided the accident would have had to slow down to something like 5 mph, said at p.133 :

"It seems to me that this is a case in which there was an appreciable risk that a child might be masked by the coach and that he might run into the path of the defendant's car but the likelihood of that happening at the precise moment at which he was passing the coach was so slight that, it is not a matter which the defendant ought to have considered to require him to slow down to the extent that I have indicated".

30.Power JA held that no distinction could properly be drawn from the fact that the appellant admitted that he was aware of the likelihood that people would alight from the maxicab. To require a driver in circumstances such as this to slow down from the moderate speed of 25 to 26 mph to a speed that would ensure that he was in a position to avoid any risk of a pedestrian running into his path from in front of the minibus would be quite reasonable. The Court of Appeal held that the trial judge was wrong to find negligence and the appeal was allowed.

31.Counsel for the plaintiff referred to Charlesworth & Percy on Negligence (9th Edition, 1997) para.9-211 on speed :

"It is the duty of the driver or rider of a vehicle to travel at a speed which is reasonable under the circumstances. In determining what is reasonable, the nature, condition, and use of the road in question, and the amount of traffic which is actually on it at the time, or which might reasonably be expected to be on it, are all important matters to be taken into consideration."

I agree with the passage cited.

32.Counsel for the plaintiff submitted that the circumstances of the Bus Lane were different from the road condition in Lau Shun Hing :

(a) The road in Lau Shun Hing was an open road but the Bus Lane was a confined space with a series of bus stops on the left;

(b) The Bus Lane was heavily crossed by pedestrians;

(c) The 1st defendant was aware of the fact that pedestrian would cross the Bus Lane even when buses were using the road;

(d) The defendant was anticipating pedestrians crossing the Bus Lane as he encountered pedestrians crossing in front of the CMB when he was approaching the rear of the CMB which caused him to sound the horn and flash the headlights;

(e) The appellant in Lau Shun Hing ran out onto the road while the plaintiff walked normally out to the Bus Lane.

33.In short, the Bus Lane is much more congested and the likelihood of pedestrians crossing it is much higher. I agree that a distinction should be drawn.

34.Counsel for the plaintiff also commented on the arrogant driving manner of the 1st defendant. Upon cross-examination, the 1st defendant was asked whether he was anticipating people to cross the road and he flashed and horned three time to tell them he wanted priority and the 1st defendant said yes.

35.According to Charles & Percy on Negligence (op. cit.) at para.9-187 on the duty of care generally :

"As Lord du Parcq pointed out, 'an underlying principle of the law of the highway is that all those lawfully using the highway ... must show mutual respect and forbearance' (see Searle v Wallbank [1947] AC 341, 361)"

36.And at para.9-250 on flashing headlights :

"The Highway Code provides that the flashing of headlights means only one thing: it lets another road user know of your presence. Headlights should not be flashed for any other reason and it must never be assumed as a result of such action that it is safe to proceed."

37.And further at para.9-251 on sounding horns :

"Sounding a horn or bell may be useful to warn other traffic of the approach of a vehicle but it does not absolve the driver or rider of his duty to take care or give him the right of way."

38.I agree with the above passages. I find that the 1st defendant was misconceived as to his priority over pedestrians crossing the Bus Lane by sounding the horn and flashing headlights.

39.On the accepted evidence, I find that :

(a) The reasonable speed for the road condition of the relevant section of the Bus Lane should have been 10 to 15 kph;

(b) The 1st defendant was travelling at 20 to 30 kph at the material time;

(c) The relevant crossing point was situated in front of the No.112 bus stop on the Bus Lane;

(d) The 1st defendant did anticipate the likelihood that pedestrians would emerge from the front of the CMB as he encountered such at the rear of the CMB;

(e) The 1st defendant did not slow down to 10 to 15 kph after he sounded the horn and flashed the headlights in order to claim priority of the Bus Lane.

40.DW4 said there was nothing the 1st defendant could have done to avoid the accident. That was only so because the 1st defendant had been driving too fast for the given road condition.

41.In all the circumstances, I find negligence on the part of the 1st defendant, and the 2nd defendant is vicariously liable.

Contributory Negligence

42.Counsel for the plaintiff conceded that the plaintiff was liable for contributory negligence by reason of not looking before crossing the Bus Lane. He submitted that it should be 15%. Counsel for the defence submitted that it should be 90%.

43.Counsel for the defence referred to Williams v. Needham [1972] RTR 387, digested in para.10.7 in Bingham & Berryman (op. cit.) :

"The plaintiff at night but in a well-lighted street parked her car with its nearside to the kerb so that she could cross to a shop on the other side. She stood in the roadway on the offside of the car with her back to it and looked to her right. She saw nothing approaching and then looked to her left. She saw three cars approaching and waited until they passed. Then without looking again to her right she stepped forward to cross the road and was at once hit by the defendant's car coming from her right. The defendant had seen her standing by her car looking away from him and had guessed that she intended crossing the road. He assumed she would look to her right before beginning to cross and took no precautions against her not doing so. When she stepped forward he was too near to avoid hitting her. HELD: The plaintiff must bear two-thirds of the blame but one-third must rest on the defendant. He knew that people did sometimes begin to cross without looking and, realising the plaintiff was about to cross, should have drawn her attention to the presence of his car or taken some other precautions against the possibility of her taking a risky step."

44.Counsel for the defence submitted that if I were to find that the 1st defendant did sound the horn, flash the headlights and slow down, his contribution to the accident was minimal and the appropriate apportionment would be 90% contributory negligence. However, I have founded against the 1st defendant on those points.

45.I bear in mind the dicta of Lord Reid in Baker v. Willoughby [1970] AC 467 that there are two elements in an assessment of liability : causation and blameworthiness. His Lordship stated at p.490E :

"A pedestrian has to look to both sides as well as forwards. He is going at perhaps three miles an hour and at that speed he is rarely a danger to anyone else. The motorist has not got to look sideways though he may have to observe over a wide angle ahead: and if he is going at a considerable speed he must not relax his observation, for the consequences may be disastrous. And it sometimes happens, though I do not say in this case, that he sees that the pedestrian is not looking his way and takes a chance that the pedestrian will not stop and that he can safely pass behind him. In my opinion it is quite possible that the motorist may be very much more to blame than the pedestrian."

46.Counsel for the plaintiff referred me to the judgment of Chung J in Li Chu Ying v. Ho Cheung Shing & Anor [2000] 4 HKC 250, which cited with approval Charlesworth & Percy on Negligence (8th Edition, 1990) para.3-13 :

"It has been suggested that, 'it is both in accordance with common sense and with good morals to hold that a man need not pay as much attention to his own safety as he does to the safety of others', with an illustration given:

'thus the inadvertence of a pedestrian who may step from the pavement into the road is not comparable to that of a driver who is proceeding at such a speed that he cannot stop within a reasonable distance. It is one thing to take a slight inadvertent risk with one's own life, even though one is not entitled to endanger it deliberately; it is an entirely different thing to risk the life of another by taking insufficient care.'"

47.I have found that the 1st defendant did anticipate the likelihood that pedestrians would cross the road but he flashed the headlights and horned to claim priority without slowing down sufficiently to allow for the possibility of other pedestrians following suit. I find that the 1st defendant is more blameworthy than the plaintiff for the accident. I apportion 70% negligence to the 1st defendant and 30% contributory negligence to the plaintiff.

II. QUANTUM

48.The plaintiff was born on 11 September 1968. She was aged 28 at the time of the accident, and 33 and going on to 34 now. She used to work as a waitress, and undertook courses in Japanese and computing. She rented a room for $1,600 per month. She was generally a happy person.

49.Counsel for the defence submitted that since the plaintiff has not given evidence of her state of being, the benefit of any doubt should be resolved in favour of the defendants.

Injuries and Disabilities

50.The plaintiff lost consciousness instantly after the collision. She received severe head injury. CT brain scan showed a right fronto-temporal acute subdural haematoma and a right temporal lobe contusion. Emergency craniotomy for clot evacuation was performed. The plaintiff remained in deep coma for 23 days. She learnt to speak about half a year after the accident. On 25 February 1998, she underwent elective cranioplasty for her post operative skull defect. Thereafter, she stayed in hospitals and the rehabilitation centre. She received intensive physiotherapy, occupational therapy and speech therapy. There is improvement of her condition after training. In September 1998, she was discharged and lived in the Lok Fu Hostel run by the Neighbourhood Advisory Council. Half a year ago, the plaintiff moved to the Western Hostel of the same organisation.

51.The plaintiff's organic brain (frontal lobe) was damaged and she suffers from the following permanent disabilities :

(a) Right hemiparesis: cannot run, walks with a limp, difficult in squatting;

(b) Dementia: mild grade mental disability (IQ points dropped from about 98 to 69);

(c) Multiple cognitive impairment: memory deficit, speech dysphasia, learning, monitoring and planning dysfunction, overall loss of 30%;

(d) Personality change: irritable, lacking volition, overeating (weight increased from 90 lb to 160 lb), oversleeping (12 hours a day), anxiety about crossing road;

(e) Inhibition: anti-social behaviour (picking nose and toes in public, smearing mucus on wall), uncontrollable laughter.

52.Despite the above disabilities, the plaintiff was able to live a fairly independent life. The Lok Fu Hostel catered mainly for old people. The plaintiff occupied a bed space at the hostel. The hostel had a counselling service by social worker but supervision and attention seemed to be insubstantial. The plaintiff attended to her own hygiene and laundry. No board was provided and she bought her own meals from outside. She only frequented one to two restaurants which she was familiar with.

53.The plaintiff did not get along well with the inmates and often loitered in the vicinity of the hostel. In June 1999 and February 2000 when the plaintiff was assessed by the experts, the plaintiff expressed the wish to live in a home setting. At that stage, the sister was going through a divorce and was not emotionally stable enough to look after her. It was then recommended by the plaintiff's psychiatrist Dr Wong Chung Kwong that the plaintiff reside in the hostel during weekdays and stay with the sister on weekends.

54.After the divorce, the sister has been living in a 380 sq.ft. flat in Quarry Bay. There are two bedrooms. The sister's two children stayed with her during weekends. The plaintiff stayed with her during most weekends, and the sister had to sleep on the floor. The plaintiff could travel by MTR from Lok Fu to Quarry Bay by herself. The sister would bring her children and the plaintiff out for social activities.

55.After the plaintiff moved to the Western Hostel, her relationship with the inmates did not improve. She still loitered around a lot. She could travel by tram from Lok Fu to Quarry Bay by herself.

56.The relationship between the sisters is generally good. The sister works in a bank in Quarry Bay and she communicates with the plaintiff three times daily by phone. The sister is willing to live with the plaintiff, but is apprehensive that if the plaintiff were left alone at home by herself, she might forget to turn off the stove, which happened once before.

Pre-trial Expenses

(a) Nursing care

57.The plaintiff's sister said during the early stage of hospitalisation, she incurred $10,447 for a private nurse for one day and a helper for 46 days to attend to the plaintiff. At that stage the plaintiff was wearing arm and leg braces to maintain her tendons, and she needed assistance as to her mobility and care. No receipt has been produced, but I consider the amount reasonable having regard to the injuries and length of hospitalisation. I shall allow the sum.

(b) Tonic Food

58.The plaintiff's sister spent $88,160 on tonic food for the plaintiff, mainly on bird's nest and ginseng. No receipt has been produced. A friend Madam Ko testified that she bought some bird's nest in the sum of $39,000 for the sister. Counsel for the defence offered $25,000 on this head. In the absence of evidence of the necessity and effect of such tonic food, I consider the sum of $25,000 reasonable and I shall allow the same.

(c) Travelling expenses

59.The following sums are claimed :

(i) $6,360 for the plaintiff's sister's bus fares to visit her in hospital for three months;

(ii) $3,180 for the plaintiff's brother's trip from China and bus fares to visit her in hospital for one month;

(iii) $8,370 for the plaintiff's father's bus fares to visit her in hospital for nine months;

(iv) $4,600 for the plaintiff's grandmother's trip from Vietnam and taxi fares to visit her in hospital.

60.At the time, there was fear of the plaintiff's life and hence the brother and the grandmother came to Hong Kong. The father also came from China and stayed for a long period to look after the plaintiff. I consider the sums reasonable and shall allow them.

Loss of Pre-trial Earnings

61.The plaintiff was earning $7,000 as at the date of the accident. Counsel for the plaintiff argued that the wage of a waitress would have risen over the past five years to $9,217 by now. No statistical evidence was adduced. Bearing in mind the effect of the economic depression since 1998, I consider the suggested increase contrary to general experience.

62.Counsel for the plaintiff also submitted that under the employment contract, the plaintiff was entitled to a 13th month double pay for one full year's service, and pro rata payment after working for full six months. Hence, the double pay element should be reflected in the multiplicand. Counsel for the defence submitted that in the certificate of remuneration dated 11 September 1998, it was stated that the plaintiff did not receive any double pay in the past year. It is hardly surprising as she only had worked for three months by the time of the accident. Hence, I shall use $7,583 as the pre-trial multiplicand.

63.There has been 56 months since the date of the accident to now. The award shall be $424,648.

Pain and Suffering and Loss of Amenities

64.Counsel for the plaintiff submitted that the plaintiff fell within the disaster or top of the gross disability category. Counsel referred to Chan Yuk v. Dragages et Travaux Publics (HK) Ltd & ors [2000] 2 HKLRD 795 where the plaintiff therein sustained severe head injury, was in coma for 18 days, suffered organic brain damage, left with a right hemiparesis, a change in personality, significant bowl and bladder incontinence, mild degree cerebral atrophy, impaired sexual function, loss of libido, loss of senses of taste and smell, reduced buccal sensation, loss of sensation in his right cheek and some loss of hearing in the right ear, mobility affected and needed support for movements, cognitive deficits and below average IQ, memory impairment, easily irritable and prove to outbursts of temper and aggression against wife and children. He was substantially dependent on wife for full time care. PSLA of $1.25 million was awarded. Counsel submitted PSLA should be in the range of between $1 million and $1.25 million.

65.Counsel for the defence submitted the case fell within the gross disability category and PSLA should be in the range of $700,000 to $750,000.

66.I find that the plaintiff falls within the gross disability category. Notwithstanding her impairment and disabilities mentioned above, she can still lead a fairly independent live although of greatly reduced amenities. I consider the award of $800,000 for PSLA appropriate.

Post-trial Loss of Earnings

67.Counsel for the defence conceded that the plaintiff could not resume any open employment and any remuneration at a sheltered workshop would be negligible. Holding against any wage increase, I shall use the multiplicand of $7,583.

68.Counsel for the plaintiff submitted the multiplier should be 16. Counsel for the defence submitted the multiplier should be between 11 and 13. Bearing in mind the retiring age for waitresses would normally be 60, and the plaintiff is almost 34, I shall adopt the multiplier of 15.

69.Hence the award shall be $7,583 x 12 x 15 = $1,364,940.

Loss of MPF Benefit

70.The plaintiff also claims a 5% employer's contribution towards the Mandatory Provident Fund. The amount of $1,364,940 x 5% = $68,247 is also allowed.

Future Medical Expenses

(a) Psychological Rehabilitation

71.Dr Calais Chan, clinical psychologist for the plaintiff suggested that demented patients as a result of traumatic head injury would normally improve in their residual cognitive functions up to a ceiling level over a course of two years if structured rehabilitation were provided. Although the plaintiff had not received such training in the first two years after the accident, she would still benefit from a two-year programme. The programme consists of weekly sessions for the first six months, bi-weekly sessions for the next six months, and monthly session for another year. The estimated cost per session is between $1,500 to $1,800. Taking the mid-point of $1,650, the total cost is $84,150.

72.Professor Peter Lee, clinical psychologist for the defence suggested the course proposed by Dr Calais Chan was redundant in that :

(a) More than two years had elapsed since the accident the effect of training would be minimal;

(b) When the plaintiff was assessed in February 2000, she was performing within the mild grade retardation range and there was little, if any room for improvement;

(c) The plaintiff had shown improvement in the past five years in that she adapted to a change of living environment and adopted a new mode of transport without any training;

(d) The best form of rehabilitation for the plaintiff is working in a sheltered workshop or special placement.

73.Upon questioning by counsel for the plaintiff, Professor Lee conceded that although he still would not recommend any training, he would not object to five to ten sessions to see if the plaintiff would show any improvement.

74.As I see it, the plaintiff suffers at least from such psychological problem as lack of volition and gross overweight that to prepare her for the work related rehabilitation mode as suggested by Professor Lee, she requires some initial training. The fact that she has shown some improvement in the past means that a structured rehabilitation programme is worth trying. Hence, I shall allow the amount of $84,150.

(b) Psychiatric Treatment

75.The respective psychiatrists for both parties agreed that future psychiatric treatment is required. However, they differed vastly as to the extent.

76.Dr Wong Chung Kwong for the plaintiff suggested that on-going psychiatric monitor was required, and prescribed 20 sessions per year at $3,500 per session. Counsel for the plaintiff suggested the life multiplier of 18. The total sum will amount to $1,260,000.

77.On the other hand, Dr Chung See Yuen suggested that the plaintiff is not suffering from any known psychiatric disorder at the moment and the condition is quite stable. However, as a demented patient, she is more prone to develop psychiatric problem in the course of life when faced with emotional and adjustment problems, especially as she becomes older. Hence, it would be reasonable to provide for 50 sessions of psychiatric treatment as and when necessary. The estimated costs is $125,000.

78.I agree with the views of Dr Chung and I shall allow $125,000.

Alternative Accommodation

79.The plaintiff is claiming the accommodation of a three bedroom flat of about 700 sq.ft. so that she and her sister can move in together. Counsel for the plaintiff indicated that the new accommodation could either be rented or purchased but suggested that in the light of the present depressed state of the property market in Hong Kong, it would be cheaper to purchase than to rent.

80.Counsel for the plaintiff conceded that in either case, deductions must be made for the rental value of $4,500 per month of the sister's existing flat, and the accommodation costs of $1,600 per month at the hostel.

81.The plaintiff expressed to Dr Chung for the defence that she wished to live in a home setting. Dr Chung agreed that it would be conducive to the plaintiff's rehabilitation if she were to live with her sister. Professor Lee also agreed that would be ideal but noted that the sister did not accept it in early 2000 as she was going through a divorce and she had to look after her family. Now, the sister is divorced and the children are not living with her. She is willing to live with the plaintiff.

82.However, Professor Lee still suggested that it was not necessary for the plaintiff to live with her sister, as best proven by her independent way of life for the past five years. Further, the plaintiff could benefit from the communal life and counselling at the hostel. Professor Lee was not familiar with the hostels of the Neighbourhood Advisory Council and could not comment further.

83.On the other hand, Dr Chung for the defence commented that the hostel arrangement was not satisfactory as the plaintiff could not mix with the old people and was bored.

84.According to Seagroatt J in Chan Yuk (op. cit.) at p.804B :

"The concept that has to be grasped is that a man or woman, by the actions of a tortfeasor, has been deprived substantially of his/her her wholeness, is entitled at least to the absolute minimum of alternative environment, which can compensate directly for the limitations, physical and mental which have been imposed."

85.To confine the plaintiff to an old people's home from now on and for the rest of her life is not conducive to her rehabilitation, to say the least, if not an aggravated deprivation of her wholeness as a person. I am satisfied that the plaintiff should live with her sister

86.The sister is living in a flat of 370 sq.ft. with two bedrooms. There are not enough rooms when her children come to stay the weekend and the sister has to sleep on the floor. It is reasonable to provide the plaintiff and the sister with a three bedroom flat.

87.It is common ground that counsel for both parties are proceeding on the basis of an award of the capital value of the flat in the event a purchase were allowed. No submissions have been made on the basis of the additional annual costs over the plaintiff's lifetime of providing the accommodation.

88.Counsel for the plaintiff referred to properties in the Kornhill area, with average price of over $3,000 per sq.ft. Counsel for the defence referred to prices in the Quarry Bay area, with average of about $2,700.

89.I consider the Quarry Bay area more reasonable as the sister has been working and living in that area. Looking at a flat of about 650 to 700 sq.ft. in the Quarry Bay area, the average purchase price is about $1.75 to $1.9 million.

90.Comparing a purchase with renting, the monthly rent is about $10,000. Using a life multiplier of 18, the sum will be about $2.16 million. Counsel for the plaintiff agreed to take the lower of purchase price or rental value.

91.In view of the plaintiff's relatively young age, and coupled with the comparison of expenses in renting and a purchase, I consider it reasonable to allow a purchase. I find that 1.8 million will be sufficient to cover the purchase price and incidental expenses and disbursements.

92.The rental value of the sister's flat of $4,500 per month and the cost of $1,600 at the hostel should be deducted. To use a life multiplier of 18, the sum will be ($4,500 + $1,600) x 12 x 18 = $1,317,600. Net of the deductions, the award shall be $482,400.

Future Care

93.The plaintiff claims the costs of a domestic helper on the standard wage of a full time foreign domestic helper, including employment contract expenses and relief worker during the annual leave period.

94.Dr Chung for the defence previously suggested that although the plaintiff could look after her own hygiene and do simple housework, if she were to live by herself, she would need a live-in domestic helper to supervise her daily activities. Dr Chung said if the plaintiff were to live with her sister, she would not need the domestic helper.

95.The plaintiff does not require care on a 24 hour basis. But she is not safe to be left alone at home. She does need care and supervision when the sister is at work. Her scope of activities is limited to the few places she is familiar with and she needs assistance to accompany her to unfamiliar places and to widen her scope of daily activities. As a foreign domestic helper is only allowed to work full time and their wages are generally lower than a local helper, I shall allow the costs of domestic helper on a full time basis.

96.Counsel for the plaintiff commented that the plaintiff may have difficulty in communicating with a foreign domestic helper. There should not be a major problem as there are foreign domestic helpers who can communicate in simple local dialect.

97.I shall adopt a life multiplier of 18. The wages element shall be $3,670 x 12 x 18 = $792,720. The contract expenses shall be $30,600. The relief worker pay shall be $220 x 14 x 9 = $27,720. The total award shall be $851,040.

98.The award for the alternative accommodation is sufficient to cover the accommodation of the domestic helper.

Summary

99.The summary of the heads of damages are as follows :

(a) Special damages		$57,957
(b) Loss of pre-trial earnings		$424,648
(c) PSLA		$800,000
(d) Post-trial loss of earnings		$1,364,940
(e) Loss of MPF benefit		$68,247
(f) Future medical expenses		$209,150
(g) Alternative accommodation		$482,400
(h) Future care		$851,040
Total		$4,258,382

100.Since the plaintiff is liable for 30% contributory negligence, the net award shall be $2,980,867.

Interest

101.Interest at half judgment rate will be awarded on special damages from the date of the accident to the date of judgment and thereafter at judgment rate until payment. Interest at 2% will be awarded for PSLA from the date of the writ to the date of judgment and thereafter at judgment rate until payment.

Costs

102.Subject to the proviso, I shall make an order nisi that the 1st and 2nd defendants do pay to the plaintiff costs of the action on the common fund basis.

103.The proviso is that there is an order nisi that the plaintiff do pay to the 1st and 2nd defendants the costs of the application to adduce further evidence and to amend the Revised Statement of Damages on the part of the plaintiff. The hearing took the better part of the morning on the second day of trial. Except for minor amendments which did not take up much time and were allowed, the major amendments in relation to the psychiatric nurse and a bigger flat for the alternative accommodation were refused. I have already given my reasons for ruling in court.

Liberty to Apply

104.There shall be liberty to apply for directions as to the dealing with the award money under Order 80, rule 12 of the Rules of the High Court.

Representation:

Mr Tim Kwok, instructed by Messrs Lo, Chan & Leung assigned by DLA, for the Plaintiff

Mr John Kerr, instructed by Messrs Hasting & Co., for the Defendants

Remarks:
Appeal by Defendants to Court of Appeal. Please refer to Appeal judgment of CACV000317/2002.