Lily Tse Lai Yin and Others v. The Incorporated Owners of Albert House and Others

HCPI000828E/1997

HCPI 828/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST NO.828 OF 1997

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

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

Coram: Hon Suffiad J in Court

Dates of Hearing: 23-25 and 27 April, 2-4, 7-8, 10-11, 14 and 16 May 2001

Date of Assessment: 17 September 2001

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

ASSESSMENT OF DAMAGES OF THE 2ND PLAINTIFF

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

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

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

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

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

INJURIES AND TREATMENT

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

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

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

1. recurring intrusive memories;

2. distressing nightmares;

3. flashback experiences;

4 tension and onset of perspiration;

5. avoidance responses; and

6. increased self blame.

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

1. headaches;

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

3. recurring nightmares of the accident;

4. flashbacks every one to two weeks;

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

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

7. numbing of feelings and withdrawal from activities;

8. sense of increased arousal;

9. impairments of concentration in memory;

10. inability to have warm feelings;

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

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

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

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

DAMAGES FOR PAIN SUFFERING AND LOSS OF AMENITIES

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

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

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

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

LOSS OF SOCIETY/SERVICE

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

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

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

SPECIAL DAMAGES

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

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

The total amount comes to $170,960.

LOSS OF INCOME (PRE-TRIAL)

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

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

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

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

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

FUTURE LOSS OF EARNINGS

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

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

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

FUTURE MEDICAL EXPENSES

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

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

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

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

INTERESTS

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

SUMMARY OF ASSESSMENT

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

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

COSTS

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

Representation:

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

The 1st Defendant in person, absent

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

The 3rd Defendant in person, absent

The 4th Defendant in person, absent

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

The 6th Defendant in person, absent