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

HCPI000828G/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

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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

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ASSESSMENT OF DAMAGES OF THE 4TH PLAINTIFF

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1.This is an assessment of damages in relation to the 4th plaintiff as a result of the canopy collapse in 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.At the time of the accident the 4th plaintiff was walking a short distance behind her mother underneath the canopy as it collapsed. Her mother, who was carrying another sibling, quickly stepped into boutique but the 4th plaintiff was unfortunately buried under the rubble of the collapsed canopy and remained buried for half an hour before she was rescued. The 4th plaintiff was five years old at the time of the accident and is now 12.

INJURIES AND TREATMENT

3.The 4th plaintiff was admitted to Queen Mary Hospital where she was diagnosed to have sustained a fracture of the right superior and inferior cubic ramy, involving the right acetabulum or hip socket. She also sustained a fracture of the left sacral iliac joint as well is two fractured upper incisors and lacerations over the right forehead.

4.The forehead lacerations were sutured, the pelvic fractures were reduced under general anaesthesia and external fixation was applied. Due to unsatisfactory alignment, she underwent further operations under general anaesthesia. Readjustment of the fixator was performed on 5 and 12 August with a traction pin inserted. The 4th plaintiff was discharged on 5 October after two months of hospitalisation. She underwent 25 sessions of physiotherapy from 5 October 1994 until 13 January 1995 and is still attending for follow-up treatment today, seven years later.

5.As a result of the accident, the 4th plaintiff has the following orthopaedic, cosmetic, neurological, psychological and psychiatric disabilities which are permanent :-

i. Asymmetry of the pelvis with a downward tilting of the pelvis to the right side, resulting in a risk that in future she will be unable to give normal birth to a child but will require a Caesarian section;

ii. Bony sclerosis in the triradiate cartilage zone of the right acetabulum;

iii. Scarring on the forehead and right and left iliac crest regions and left knee. The scarring on the forehead and hips are noticeable and will be a source of embarrassment to her, particularly when she is older. She has cried on occasions when negative comments about her appearance have been directed at her;

iv. Post Concussional Syndrome, resulting in, inter alia, dizziness, headaches, motion sickness, emotional disturbance and personality changes;

v. Cognitive impairment from brain/neurological damage, including hypoxic damage to the hippocampal region of both mesiotemporal lobes, impacting upon the processing of memory. A correlated deficit has been noted in psychometric testing as a result of which a significant impairment to her visual delayed memory function has been identified. This means that she has learning difficulties arising from difficulties in processing or encoding semantically unrelated material and sequencing material. This has resulted in an impairment of the memory and serious difficulties in reading, dictation, spelling and mental arithmetic despite her residual high average Intelligence Quotient of 116. It is probable that her pre accident IQ or potential IQ was higher then 116.

vi. Visual impairment, resulting from brain/neurological damage, including convergence insufficiency, accommodative infacility and poor visual tracking; and

vii. Post Traumatic Stress Disorder which still manifest itself in the form of nightmares of the accident, impaired sleep, startled reactions, avoidance of thoughts and conversation of the accident, detachment, reduced interest, irritability, difficulty in concentrating and learning. Her tutor describes her as a "scared little bird".

PAIN SUFFERING AND LOSS OF AMENITIES

6.On the above undisputed medical condition and disability of the 4th plaintiff, there is no dispute between the parties that firstly, the 4th plaintiff falls into the top end of the 'Serious Injury' category as it is understood in the case of Lee Ting Lam, and that secondly, a reasonable amount under this head of damage as regards the 4th plaintiff is in the region of $600,000.00. Under those circumstances this amount of $600,000.00 will be awarded for the 4th plaintiff's pain suffering and loss of amenities.

SPECIAL DAMAGES

7.There is also no dispute between the parties as to the items of special damages claimed nor the amount thereof which are as follows :-

		$
Father's loss of income		20,000
Medical expenses		19,376
Travelling expenses		5,120
Tonic food		20,000
Cost of Private Tutor		50,000
Damaged clothing		150
	Total :	114,646

Upon the evidence relating to special damages, I am satisfied that such amounts have been incurred and are reasonable. In the circumstances, the above amounts claimed for special damages will be allowed in full.

FUTURE LOSS

A. Future psychiatric treatment

8.Very extensive private psychiatric treatment has been recommended by Dr Singer for the 4th plaintiff which is estimated to cost in the region of $65,000 per year for the next six years.

9.Dr Singer has also recommended psychiatric counselling and/or treatment costing in the region of $130,000 for the mother of the 4th plaintiff who has herself suffered psychiatric illness as a result of the accident to the 4th plaintiff and therefore less able to cope with the 4th plaintiff's needs.

10.On the other hand, the defendants, in their final submission, have indicated that they are prepared to concede an amount of $290,000 as being the cost of future psychiatric treatment for the 4th plaintiff and a further sum of $66,144 being the cost of future psychiatric treatment for the mother. Together these two sums conceded by the defendants come to $356,144.

11.I am not persuaded that the mother needs separate counselling or treatment and which needs to be paid for separately rather that her condition is a reflection of the condition of the 4th plaintiff. Moreover, at age 12, it would be most likely that the 4th plaintiff would be accompanied by her mother when she attends such treatment. In that sense, the mother can also benefit from the sessions which she attends with the 4th plaintiff.

12.By reason of the concession given by the defendants, the 4th plaintiff is prepared to come down to a total claim of $385,000 under this head of claim. Accordingly, I am of the view that an award of $385,000 would be reasonable under this head of claim.

B. Vision training and auditory therapy

13.Dr Ko Sai Cheong and Dr Ko Yang Yang have recommended for the 4th plaintiff vision therapy and auditory therapy costing $79,900 and $20,000 respectively. Neither those recommendations nor the amounts have been disputed or challenged in any way by the defendants. Both amounts will accordingly be allowed in full.

C. Future cost for developmental paediatrician

14.The 4th plaintiff claims for the cost of a developmental paediatrician on the basis that she has multiple disabilities and cognitive deficits and her development should be monitored by a private paediatrician so that there is continuity of treatment.

15.However, there seems to be a very large difference, even between the plaintiff's own experts, as to the cost for such a paediatrician. Dr Ko estimates it at $72,000 while Mrs Chung says $18,000.

16.The plaintiff's own counsel accepts that in view of the extensive psychiatric treatment which the 4th plaintiff is undertaking, her sessions with the paediatrician could be restricted to an as and when needed basis.

17.The defendants on the other hand are prepared only to concede an amount of $15,000 under this head of claim.

18.In view of the foregoing, in particular because of the concession by the defendants, I will make an award of $15,000 under this head of damage.

D. Cosmetic Surgery

19.Future cosmetic surgery is recommended by Dr Otto Au in the amount of $86,500. This recommendation and the amount of the cost of it has not been disputed or challenged by the defendants.

20.For a young female such as the 4th plaintiff, the scarring on the forehead and on the left knee will in time cause her embarrassment. It is therefore entirely reasonable to allow in full the amount recommended under this head of damage.

E. Cost of private tutor

21.$48,000 is claimed by the 4th plaintiff under this head and is conceded by the defendants. This is based on $800 per month for the next five years while the plaintiff will be at school. The resultant disabilities which she face as a result of her accident will clearly affect her schoolwork. This claims seems reasonable in all the circumstances and will be allowed.

F. Alternative learning strategy

22.Alternative Learning Strategy Training has been recommended for the 4th plaintiff by both Dr Ko and Mrs Chung. However the prices quoted by them are very different. The claim by the 4th plaintiff is for $204,600 which is already less than the amount recommended by Dr Ko. The figure suggested by Mrs Chung is $150,000.

23.That lower figure suggested by Mrs Chung is conceded by the defendants.

24.Given the injuries suffered by the 4th plaintiff and their resultant disabilities caused to her, she will undoubtedly benefit from specialised training.

25.In the light of the concession by the defendants, $150,000 will be awarded under this head.

G. Loss of earnings capacity

26.As already stated, the 4th plaintiff was five years old at the time of the accident and only 12 now. It will be quite a few more years before she will even embark on her working life. Any assessment as to what her future loss of earnings will be must be highly speculative since it must involve many as yet unknown factors to make such an assessment.

27.Counsel for the plaintiff has suggested that the multiplier-multiplicand method be adopted on the basis that what I have to assess here is the loss of a chance in respect of the 4th plaintiff as a result of the accident.

28.The argument of the 4th plaintiff runs as follows : the undisputed advice of the clinical psychologist, Mrs Hannah Chung is that the 4th plaintiff, being in the top 85 percentile before the accident, had more than a 50% chance of obtaining a degree after completing tertiary or university education, but as a result of the accident, she has now less than a 50% chance of passing her Form 5 government examinations and would have no chance of obtaining a tertiary degree. Mrs Chung further advices that the 4th plaintiff may try jobs in sales, in the service industry or unskilled jobs that do not require writing skills.

29.Dr Ko, the consultant paediatrician, expresses a similar view that the 4th plaintiff has less than 50% chance of obtaining a degree. Moreover, Dr Ko advises that the 4th plaintiff will no longer be capable of doing jobs that require writing and dictation skills.

30.The multiplicand therefore, submits the 4th plaintiff, should be the differential between the average career income that a university graduate could expect to receive and that of a person with only Form 3 or Form 5 qualifications could earn.

31.A voluminous amount of evidence has been placed before me in an attempt to show the salary offered by the Hong Kong Government in the non-directorate level as contained in the Master Pay Scale as well as earning levels offered by the Hong Kong Government for those with only Form 3 or Form 5 qualifications.

32.Without going into any great detail relating to those statistics, it suffices to say that counsel for the 4th plaintiff has worked out from those statistics the average income of a degree holder in the Civil Service to be $47,500 whereas the salary for those grades in the Civil Service upon completion of Form 5 generally range from $9,180 (MPS-2) to $22,075 (MPS-17) with some noteable exceptions which can be ignored for present purposes due to the fact that these exceptions are so few.

33.The 4th plaintiff further suggested an alternative approach which is to calculate the lost chance of the 4th plaintiff to have qualified as a professional by reference to the differential between the relevant starting salaries in the civil service as recently adjusted. Once again without going into any great detail, it suffices to say that from the statistics supplied by the plaintiff, counsel for the plaintiff has worked out that differential to be between $18,000 and $20,000.

34.In so far as the multiplier is concerned, it was submitted by counsel for the 4th plaintiff that although the 4th plaintiff has now only 12 years of age, taking into account the fact that it would be a number of years before she would reach working age as well as the fact of accelerated payment, it would be appropriate to discount the multiplier down to 13 instead of using the normal ceiling figure. Using the lower figure of the differential in the alternative approach and applying that to win multiplier 13, this would give the figure of $2,246,400 as representing the loss of future earnings capacity. In addition it was submitted that a further 5% of this figure amounting to $112,320 should be taken into account as representing the loss of Mandatory Provident Fund benefits.

35.The defendants on the other hand, while disputing the initial approach of assessing future loss of earnings capacity, conceded that $2.36 million would be a reasonable figure as an award under this head inclusive of the possible loss of Mandatory Provident Fund.

36.In view of the many as yet unknown factors already referred to above, I share that view taken by the defendants and for that reason I find the initial approach as submitted by the 4th plaintiff unattractive. I would, in the circumstances of this case, prefer the alternative approach. As that has been conceded by the defendants, I will assess the loss of future earnings capacity to be $2.36 million which is inclusive of loss of Mandatory Provident Fund.

37.Total future losses therefore comes to $3,144,400.

INTERESTS

38.Interests will be awarded at 2% per annum on general damages for pain, suffering and loss of amenities from the date of the Writ. Interests on all pre-trial special damages will be awarded at half judgment rate from the date of the accident.

SUMMARY OF ASSESSMENT

		$
PSLA		600,000
Special Damages (Pre-trial)		114,646
Total Future Losses		3,144,400
	Sub-total:	3,859,046
Interests on PSLA		48,000
Interests on Special Damages		48,151
	Total:	3,955,197

The 4th plaintiff's damages is accordingly assessed at $3,955,197.

COSTS

39.There will be a costs order nisi that the defendants do pay the costs of this assessment to be taxed on common fund basis if not agreed with certificate for two counsel. The 4th 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 4th 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