Lily Tse Lai Yin and Others v. The Incorporated Owners of Albert House and Others
Read the full judgment text of HCPI 828/1997 on BabelCite. This High Court CFI judgment was delivered on 17 September 2001.
1. This is an assessment of damages in respect of the 3rd plaintiff arising from the collapse of a canopy at Albert House on 1 August 1994. Liability has already been determined in favour of the plaintiffs against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel.
Cites 2 cases
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HCPI000828F/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 3RD PLAINTIFF ------------------------------------------------------------------------ 1.This is an assessment of damages in respect of the 3rd plaintiff arising from the collapse of a canopy at Albert House on 1 August 1994. Liability has already been determined in favour of the plaintiffs against all the defendants. At the assessment hearing, the 2nd and 5th defendants appeared by counsel. The other defendants did not see fit to appear either in person or by counsel. 2.The 3rd plaintiff was another one of the victims of this canopy collapse. At the time of the accident the 3rd plaintiff was carrying her two and a half months old daughter in a baby sling strapped across her chest. Her older daughter, six years old, being the 9th plaintiff herein, was walking next to her. They had just finished tea at the New Best Restaurant and had just emerged from the entrance of the restaurant near to the newspaper stall when the canopy collapsed onto them. When the 3rd plaintiff was hit by concrete from the falling canopy, she instinctively used her right hand to protect her baby's head resulting in her right hand being crushed and eventually losing three fingers. However this instinctive reaction of hers may have saved her baby's life. She lost consciousness after being hit by the falling concrete and when she came to she was underneath the rubble and felt that someone was shouting at her and shaking her leg. She could not move. Her baby was the first to be rescued by the rescuers. Eventually the 3rd plaintiff herself was freed from the rubble. She felt blood on her head, numbness and pain in her right fingers but at the same time she had intense fear for the safety of her two daughters. She was taken to hospital by ambulance. INJURIES AND TREATMENT 3.As a result of the accident the 3rd plaintiff sustained permanent orthopedic, cosmetic, cognitive and psychiatric disabilities. She lost part of the index, middle and ring fingers of her right dominant hand. She sustained discomfort and a decrease in sensation at the site of the injury to the right hand with a partial loss of grip and a reduction in her ability to lift heavy objects. Her right hand is now deformed and she has scars on her forehead which causes her embarrassment. She has Post Concussional Syndrome which manifests itself in bi-temporal headaches and dizziness particularly when travelling as well as memory loss with difficulties in concentrating. She also suffers from Post Traumatic Stress Disorder which manifests itself in recurrent distressing re-experiencing of the accident with symptoms of increased arousal. This causes insomnia. The 3rd plaintiff has undergone a personality change and is now anxious and impatient. She avoids any stimulus that reminds her of the accident and has a numbing of general responsiveness. Her sex life with her husband has also diminished. 4.When she was admitted to the orthopedic department of the Queen Mary hospital, the 3rd plaintiff was found to have bilateral temporal scalp laceration and grossly contaminated wounds of the right index, middle and ring fingers. Amputation of the distal joint of the ring finger was performed. Repair of the distal segment of the index and middle finger with repair to the nerves of the middle finger was also carried out. The temporal wounds were sutured. The 3rd plaintiff was then referred for follow-up at the hand class. 5.Upon admission to Queen Mary Hospital, doctors noted that the two lacerations of the scalp were at the right and left parietal region and were full of thickness. The 3rd plaintiff was otherwise stable and CT scan was normal. She was kept for 24 hours in the neurosurgical unit for observation before being transferred to the orthopedic unit for treatment. 6.In so far as her orthopedic condition was concerned, this was contained in medical reports prepared by Dr Arthur Chiang who first saw her one year after the accident. Apart from the injuries noted by doctors at the hospital, the 3rd plaintiff also sustained multiple contusions on the chest wall, the back and the shoulder areas and is probably indicative that her trunk and limbs bore the weight of the falling debris. She experiences aches in both shoulders, the lower back and the front of the chest wall. Dr Chiang estimates 1% impairment from these injuries. 7.There were two scars behind the hairline, one about seven centimetres at the left temporal area and another of four centimetres at the right temporal area. The 3rd plaintiff suffered occasional dizziness when she travelled. Dr Chiang estimates a further 1% impairment from the head injuries. 8.As for the injuries to her right hand, which is the dominant hand, Dr Chiang estimates that to be 8% impairment of the whole person. He further found on examination that the right-hand grip is weaker than the left, with the right middle finger being the weakest. The pinch power between thumb and right finger is mildly weakened. She has a feeling of stiffness of the hand when it is soaked in water. There is a decrease in sensation at the index and middle fingers, distal to the wounds. The ring finger had been amputated at the level of the middle phalanx and there was a healed curved scar at the stump. She has a deformed nail and a healed scar at the right index finger pulp. X-rays confirmed partial bone loss with shortening of the distal phalanx of the right index finger. There was a horizontal scar at the velar surface of the distal interphalangeal joint area and a longitudinal scar at the radial side of the middle phalanx. 9.Dr Chiang further states that the 3rd plaintiff could return to her pre-accident job but that her efficiency in handling fine objects requiring intact sensation of the index and middle fingers and when lifting heavy objects is impaired. 10.In a further report Dr Chiang noted some improvement in the condition of the right-hand and revised downwards his assessment of the total impairment from 10% to 7%. In two later reports, Dr Chiang confirmed this to be the level of disability of the 3rd plaintiff. 11.As for the neurological condition of the 3rd plaintiff, Dr Yu Yuk Ling noted that the 3rd plaintiff complained of bilateral headaches of a throbbing character associated with dizziness. The headaches occurred about once a week for about two hours at a time. She also had an itching sensation to the scar of the scalp. Additionally she had dizziness brought about by motion when she travelled on taxis and buses. She found it difficult to concentrate and her performance in mental tasks had deteriorated. Her memory was impaired. 12.Dr Yu took the view that the 3rd plaintiff had sustained a mild head injury with a loss of consciousness and amnesia of about half to one hour. She suffered from post concussional syndrome which resulted in an impairment of 3% and required medical consultations. 13.When Dr Yu examined the 3rd plaintiff in July 2000, he found little change to her neurological condition. He advised that her condition was permanent and that consultations should be limited to three to four visits a year at about $250 per visit. 14.In this latest report, Dr Yu advised that there was no link between symptoms of aching and numbness of the right arm and the accident as these were likely to be from carpal tunnel syndrome or cervical spondylosis. 15.The 3rd plaintiff was also examined in respect of her psychiatric condition by Dr Singer, a psychiatrist. Dr Singer recounts the terrible moments when the 3rd plaintiff and her baby were buried by the falling canopy near the newspapers stall. She lost consciousness and awoke after an indeterminate period, dazed, confused and fearful. She could not move even to free her baby from the sling. Rescuers took her baby away. She remained immobilised until they dug her out. Her fear increased when she heard that her baby was more seriously injured. Inside the ambulance she realised she had experienced any event involving threat of serious injury or death to her and her two daughters. She felt intense fear and horror. She prayed she could give ten years of her life to her children. She was admitted to the neurosurgical ward where she vomited repeatedly and wept continuously. 16.Dr Singer confirmed the 3rd plaintiff was suffering from Post Traumatic Stress Disorder and Post Concussional Syndrome. The 3rd plaintiff's condition manifests itself in recurrent distressing recollections of the accident associated with fear and palpitations. Even in May 2000, almost six years after the accident, these forced recollections occurred three times a week. She had a fear of overhanging objects and avoidance of thoughts of the accident but this has improved. Six years after the accident she still has impaired sleep two to three times a week. Moreover the 3rd plaintiff has impaired memory, headaches and dizziness. She has undergone a personality change becoming bad tempered. There have been marital problems as a result of the accident with a reduction in the frequency of sexual relations with her husband since the accident. She is unresponsive during intercourse and has threatened divorce. 17.Dr Singer advises that the prognosis for the Post Traumatic Stress Disorder and Post Concussional Syndrome is likely to be static as the condition has persisted for six years. Dr Singer further recommends psychiatric treatment in the private sector at the cost of $65,000 a year for three years, consisting of fortnightly sessions mainly psychotherapy at $2,500 per session. Medication may be required. Thereafter five years of maintenance treatment of $36,000 a year at $3000 a session. Follow-up was needed indefinitely every three months. 18.Dr Singer assessed the permanent impairment of earning capacity from psychiatric disability was 25% with treatment, and 50% without treatment. Permanent impairment of the whole person was 15% with treatment and 30% without. PAIN SUFFERING AND LOSS OF AMENITIES 19.The injuries and treatment of the 3rd plaintiff as detailed above have not been disputed by the 2nd and 5th defendants at the assessment hearing. I accept that the 3rd plaintiff's medical, neurological and psychiatric condition to be as stated by the various doctors referred to above. 20.I have been referred to a number of locally decided cases in respect of the quantum of damages under this head. The cases referred to me are as follows :
Using these cases as a guideline in respect of quantum for damages under this head and coming to the conclusion that the injuries to the 3rd plaintiff in the present case come just within the lowest end of the "Serious Injury" as laid down in the case of Lee Ting Lam, I am of the view that $430,000 would be reasonable compensation to the 3rd plaintiff under this head of damage. SPECIAL DAMAGES 21.Past medical expenses are claimed at $24,120. These include the physiotherapy provided by Dr Chiu, 20 sessions at the Queen Mary Hospital hand clinic, expenses paid to Chinese herbalist consultations and medical fees paid to Dr Fang for treatment of her orthopedic injuries. The various amounts of medical expenses claimed have not been challenged by those defendants who appeared at the assessment hearing. The total amount of the medical expenses claimed being reasonable will be allowed in full. 22.Travelling expenses are claimed in the sum of $3,850. The evidence shows that this amount was expended for the purpose of the plaintiff travelling to and from medical treatment, physiotherapy and consultations with the Chinese herbalist. The amount claimed has been admitted by the 2nd and 5th defendants and will be allowed as being reasonably incurred. 23.Expenses for tonic food is claimed by the 3rd plaintiff in the sum of $3,000. This has not been disputed and appears a reasonable amount. It will be allowed in full. 24.$400 is claimed for damaged clothing. In the absence of any dispute to this claim, it will be allowed in full. 25.There is a claim for the loss of earnings of the 3rd plaintiff's husband in the total amount of $40,000 in respect of the five months immediately following the accident. The evidence showed that the 3rd plaintiff's husband was, at the time, a fisherman whose job would have taken him out to sea seven days in a week. Due to her injuries and her hospitalization, the husband had to take unpaid leave for five months to take care of the 3rd plaintiff as well as their two and a half months old baby and their five year old daughter. This claim is admitted by the 2nd and 5th defendants and will be allowed in full. 26.There is a claim for $10,000 by the 3rd plaintiff being what was paid to a Madam Leung Mui, the sister of the 3rd plaintiff's husband, in helping the 3rd plaintiff to look after her children for the three months immediately after the accident. This claim is disputed by the 2nd and 5th defendants on the grounds that this amount was not reasonably expended and overlaps with the husband taking five months leave from his work to look after the children. Accepting the defendant's submission on this point, this claim is disallowed. PRE-TRIAL LOSS OF EARNINGS 27.Before the accident and up to about mid 1993, the 3rd plaintiff assisted in a bean curd stall selling bean curd and was paid about $4,200 per month. From mid-1993, she worked as a hawker and could earn on average between $6,000 to $7,000 a month. She stopped working as a hawker in around September 1993 when she became pregnant with her youngest child who was born in May 1994. She had intended to resume her hawking business in December 1994 but for the accident. As a result of the accident and the injuries she sustained, the 3rd plaintiff was not able to take up any work until November/December 1997 when she found part time work as a domestic helper. It is accepted by the 2nd and 5th defendants that in the pre-trial period, the 3rd plaintiff had totally earned $52,000 as a part time domestic helper. 28.While the 3rd plaintiff claims $371,500 under this head, the 2nd and 5th defendants have conceded the sum of $294,500 for pre-trial loss of earnings. This concession has been accepted by the 3rd plaintiff and the amount of $294,500 will be awarded under this head of damage. FUTURE MEDICAL EXPENSES 29.As advised by Dr Yu Yuk Ling, the future medical expenses for the 3rd plaintiff's post concussional syndrome is estimated at $250 a session. Moreover since Dr Yu takes the view that her condition is permanent, the consultations should be limited to three or four visits per year. Using a multiplier of 16 will give $14,000. 30.As for the future psychiatric treatment, Dr Singer's recommendation for psychiatric treatment in the private sector is calculated to be around $471,000. However, the 3rd plaintiff is prepared to accede to the concession made by the 2nd and 5th defendants in the amount of $239,240 being the cost of future psychiatric treatment. In the circumstances, that sum will be awarded. FUTURE LOSS OF EARNINGS AND MANDATORY PROVIDENT FUND 31.The 3rd plaintiff had initially claimed for $646,800 for her loss of future earnings based on the current estimated income of $6,000 less what she was earning at the bean curd stall and as a part time domestic helper between June and September 2000 and applying to that a multiplier of 14. 32.However, in view of Dr Arthur Chiang's advice as to the lack of a causative link between the 3rd plaintiff's current complaints of numbness in her arm and Dr Yu Yuk Ling's view that this may be a result of Carpal Tunnel Syndrome, alternatively, cervical spondylosis, the 3rd plaintiff is prepared to come down on her claim for loss of future earnings to the amount of $132,000 conceded by the 2nd and 5th defendants. In the circumstances, the sum of $132,000 will be awarded. 33.There is also a claim for loss of Mandatory Provident Fund. In the light of the above concession, the claim for Mandatory Provident Fund will be 5% of the amount of the loss of future earnings which comes to $6,600. 34.Totally therefore the amount awarded under this head will come to $138,600. INTERESTS 35.Interests will be awarded on the general damages for pain suffering and loss of amenities at 2% form the date of the Writ. 36.On special damages and loss of pre-trial earnings, it will be awarded at half judgement rate from the date of the accident. SUMMARY OF ASSESSMENT
37.Accordingly, the total damages assessed for the 3rd plaintiff comes to $1,375,475. Costs 38.There will be a cost order nisi that the defendants do pay the costs of the assessment to be taxed on a party and party basis if not agreed. The 3rd plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Representation: Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 3rd 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 |
Cases cited in this judgment
Further hearings and rulings under HCPI 828/1997