Case Document

100%Judiciary

HCPI000828K/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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BETWEEN
	LILY TSE LAI YIN	1st Plaintiff
	TSUI HO	2nd Plaintiff
	NG PAK MUI	3rd Plaintiff
	TSUI WAI NGA by her father and next friend TSUI SIU ON	4th Plaintiff
	CHAN MIN WAH	5th Plaintiff
	LEUNG PUI YING by her father and next friend LEUNG TAI FUK	6th Plaintiff
	TSUI SAI NUI the Administrator of the Estate of MO YEE, deceased	7th Plaintiff
	HO SHIU TAK by his father and next friend HO TUNG SHING	8th Plaintiff
	LEUNG PUI YUK by her father and next friend LEUNG TAI FUK	9th Plaintiff

	AND

	THE INCORPORATED OWNERS OF ALBERT HOUSE (also known as THE OWNER INCORPORATION OF ALBERT HOUSE)	1st Defendant
	HOUSING MANAGEMENT AGENCY LIMITED	2nd Defendant
	HO WING HANG	3rd Defendant
	NEW BEST RESTAURANT LIMITED	4th Defendant
	ABERDEEN WINNER INVESTMENT COMPANY LIMITED	5th Defendant
	黃紀安經營恒安坼卸工程 (transliterated as WONG KAY ON trading as HANG ON DEMOLITION AND TRANSPORTATION COMPANY alternatively HANG ON TRANSPORTATION COMPANY)	6th Defendant

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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 8TH PLAINTIFF

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1.This is an assessment of damages in respect of the 8th plaintiff arising from the Albert House canopy collapse on 1 August 1994. Liability has already been determined 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 8th plaintiff, one of the victims in the Albert House canopy collapse saga, was an infant three and a half years old at the time of the accident. At the time he was walking with his mother (the 1st plaintiff herein) when the canopy started to collapse. Due to the quick reaction of his mother, the 8th plaintiff was pushed inside the entrance of the U2 shop which is a shop situated on the ground floor of Albert House immediately beneath the canopy which collapsed. This action of his mother effectively protected the 8th plaintiff from any major physical injury. However the mother herself could not escape in time and was pinned down by a large slab of concrete from the following canopy right at the entrance to the U2 shop which resulted in her being paralysed from the waist downwards and will need to be wheelchair-bound for the rest of her life.

3.After the 8th plaintiff was extricated from the debris, he refused to be taken to safety but insisted on waiting until his mother, who at the time was still pinned underneath the slab of concrete, had been rescued by rescuers. After his mother was also freed from the concrete pinning her down, the 8th plaintiff travelled with his mother in the same ambulance to hospital.

INJURIES AND TREATMENT

4.Upon admission to the Queen Mary Hospital's Accident and Emergency department, the 8th plaintiff was found to sustain only superficial physical injury. He was treated and discharged on the same day. Several days after the accident the 8th plaintiff complained about a headache. His father took him back to Queen Mary Hospital but the doctors there failed to find anything wrong with him. Nevertheless he continued to complain about the headache.

5.The family of the 8th plaintiff had actually noticed odd behaviour on his part after the accident. As early as two weeks after the accident, when his father took him to the hospital to visit his mother, that being her birthday, the 8th plaintiff appeared not to recognise her, refused to go near her and cried loudly when he was handed to his mother. This alienation from his mother continued after she was discharged from hospital.

6.Furthermore, the 8th plaintiff was afraid of being left alone. He was afraid of the dark. He did not want to sleep on his own. He insisted on leaving the bathroom door open when he was using the toilet or taking a bath. At times as father would have to accompany him.

7.He began to wet his bed at night. This occurred on a regular basis at about 1 a.m. every night and he continued to be incontinent at night until he was seven years old. Furthermore during the night he had nightmares, frequently so in the first one or two years after the accident. He would wake up in the middle of the night crying for 20 to 25 minutes and would not respond when being comforted by other family members. These nightmares carried on for some four years after the accident. Although less frequent now, the 8th plaintiff still continues to have nightmares.

8.At times during the day the 8th plaintiff was heard to mutter to himself " the building collapsed". He avoided the site of the accident and would warn his mother about going underneath overhanging canopies. If he heard others talking about canopies collapse, he would stare at his mother and appear very worried.

9.Generally, his personality changed after the accident, he became less active, less attentive, less talkative. He did not like going out. He insisted that his mother accompany him. If he went out, he would want to return home within a very short time. He was afraid of noisy environment.

10.It was only some four years after the accident, when Dr Singer, a psychiatrist, was interviewing the mother of the 8th plaintiff in the course of preparing a medical report in respect of her condition, that it was discovered that the 8th plaintiff was suffering from neurological and psychiatric impairment. However because of the financial position of the family at that time, the 8th plaintiff received no treatment for those impairment until towards the end of 2000 when he was arranged to attend psychotherapy with Dr Katherine Kot, a clinical psychologist in private practice.

PSYCHIATRIC ASSESSMENT

11.Dr Singer examined the 8th plaintiff in January 1999 and again in January 2001. In his first report, Dr Singer sets out the history pertaining to the 8th plaintiff and which I have already referred to above.

12.In his report given after the 2nd examination of the 8th plaintiff, Dr Singer updates the position and expense on the treatment which he has recommended in his first report. In the course of the 2nd examination by Dr Singer, the 8th plaintiff informed Dr Singer that he could not remember the accident and its associated events in the one or two months following the accident. The current complaints of the 8th plaintiff are that he lacked enthusiasm in his studies and is only slightly interested in play. He cannot explain why he does not like going out the home for more than ten minutes even when accompanied by his father. He is also afraid of the darkness.

13.In his first report, Dr Singer concluded that the 8th plaintiff was suffering from Post Traumatic Stress Disorder as a consequence of the accident. In his second report, Dr Singer found that although the 8th plaintiff had improved somewhat, he was still suffering from the symptoms of Post Traumatic Stress Disorder as shown by his avoidance of stimuli associated with the original trauma.

14.According to Dr Singer, bedwetting occurs with anxiety which is a symptom of PTSD and that the dependence on the milk bottle was a feature of emotional and psychological development due to anxiety occurring after the accident. Another feature of PTSD is that the subject is often unable to recall an important aspect of the trauma: a defence mechanism to prevent anxiety. Dr Singer advised that the 8th plaintiff seemed to be trying his best to overcome his problems and also tend to deny them. He anticipates that the 8th plaintiff will have difficulties coping with stresses associated with demands at a later stage, especially in the social and occupational spheres. He further states that associated with the PTSD is a parent-child relationship problem due to lack of mothering from one who was also severely disabled by the accident. Dr Singer found the 8th plaintiff to be overly dependent on his father which is hardly surprising given the circumstances.

15.In his opinion, Dr Singer states that PTSD which has become chronic can last for decades and can also relapse after years of remission. The learning difficulties and PTSD symptoms will have detrimental consequences on the 8th plaintiff's scholastic achievements and occupational and social functioning in adulthood. Whereas but for the accident the 8th plaintiff would probably have completed tertiary education, the accident has made it difficult for him to finish secondary school.

16.Dr Singer recommends fortnightly psychiatric treatment for three years. This would consist mainly of psychotherapy including desensitization procedures, assertive and social skills training and thereafter, maintenance treatment for a further five years. Indefinite follow-up every three months was required. Medication may be required consisting of antidepressants and tranquillisers and possibly hypnotics for sleep disturbances given as and when required. The total recommended treatment is calculated at $519,000.

17.Dr Singer advises that the 8th plaintiff currently has a 30% permanent impairment of the whole person without treatment and 15% impairment with treatment and estimates that the permanent impairment of earning capacity to be 50% without treatment and 25% with treatment.

RADIOLOGICAL ASSESSMENT

18.A PET scan was performed on the 8th plaintiff on 5 February 2001. Mr David Yeung, the consultant in Nuclear Medicine advised that "to bring positron the mission tomography is grossly normal except a mild decrease in his right anterior mesiotemporal lobe hippocampal metabolic function. Child's non-verbal memory and topographic memory should be evaluated for any impairment."

19.As a result of this recommendation, a specific memory test was carried out which confirmed a significant deficit in the Visual Delayed Memory of the 8th plaintiff. In this respect a clinical psychologist report and the report of the behavioural Optometrist, Dr Ko Sai Cheong support a finding of brain damage in the 8th plaintiff as evidence by the results of the PET scan.

NEUROLOGICAL ASSESSMENT

20.Dr Huang Chen Ya, the consultant neurologist, examined the 8th plaintiff in March 2001, after the results of the PET scan were made available and advised that there were no abnormality detectable in the neurological examination. However, in the absence of any significant medical illness during pregnancy, birth or childhood prior to the accident, it would be unusual and unexpected for a normal child to suffer the unusual combination of visual memory impairment and hippocampal abnormality, with the latter being consistent with the PET scan findings. Dr Huang therefore confirms the link between the damage to the hippocampus as indicated by the PET scan and the memory deficit found upon psychological testing.

21.Dr Huang further advised that the memory and hippocampal abnormality is consistent with a limited but intense hypoxic period during the accident. This probably occurred when the 8th plaintiff was buried face down in the debris. Dr Huang also advised that PTSD may also be associated with memory impairment and hippocampal atrophy, which is therefore supportive of Dr Singer's diagnosis.

22.Dr Lillian Ko, consultant paediatrician, had the additional benefit of the latest vision assessment report which was dated 24 April 2001 provided by Dr Ko Sai Cheong and which only became available after Dr Huang had completed his report. Dr Lillian Ko advised that the 8th plaintiff's learning disability was due to a specific memory deficit caused by hypo function of the right anterior mesiotemporal lobe of the hippocampus of the brain resulting from hypoxic injury. At the same time, Dr Lillian Ko also noted the continued symptoms of PTSD.

23.All this indicate that the 8th plaintiff had more likely than not suffered some form of brain damage caused by hypoxia in the accident, the precise aetiology is probably academic since both the potential causes of the 8th plaintiff's learning difficulties are not mutually exclusive and in any event both result from the accident.

24.Dr Huang advised that in view of the 8th plaintiff's superior IQ and memory he would have probably obtained a degree after completing tertiary or university education. However, in view of his PTSD and visual memory impairment, the 8th plaintiff now has a less than 50% chance of completing Form 5 let alone obtaining a degree, in which event the 8th plaintiff is probably only capable of simple labour intensive jobs which do not require English.

CLINICAL PSYCHOLOGY ASSESSMENT

25.The 8th plaintiff was examined by a clinical psychologist, Mrs Chung Ng Lai Kuen in March 2000 who found that he had a Superior Full Scale IQ of 120. She found that the 8th plaintiff was late to attain night-time continence post accident. She also concluded from the 8th plaintiff's muttering "the building collapsed" every now and then that his personality and emotional growth and development could have suffered during the critical foundation years because of this tragic event in that he is less secure than he should be and enjoys less outdoor activities with his family.

26.As a result of the PET scan (referred to above), Mrs Chung provided a further up date report in March 2001 after she had conducted a specific test for memory - The Children's Memory Test. In that up-date report, Mrs Chung found a "significant deficit in his Visual Delayed Memory, which was only within the low average range. (The 8th plaintiff) has difficulty consolidating, storing and retrieving newly learned visual/non-verbal material, be it a one-trial learning situation or with highly structured repeated trials. This will have an adverse effect on his learning in school which requires visual learning. He is rather poor in sequencing alphabets. These are all contributory to his unsatisfactory academic results."

27.Mrs Chung recommends that the 8th plaintiff has supervision by a Developmental Paediatrician and Educational Psychologist. She also supports the provision of private tuition to assist the 8th plaintiff until he leaves school. Mrs Chung also recommends Alternative Training Strategy which can be provided by the Potential Development Association the cost of which is estimated to be $128,600 over an 8-year period with weekly lessons being given by an occupational therapist.

28.Mrs Chung opines, based on his IQ which is a percentile rank of 91, that the 8th plaintiff would have had more than a 50% chance of obtaining a degree after completing tertiary or university education. Although he still has more than a 50% chance of completing Form 5, Mrs Chung believes that he now has less than a 50% chance of passing the HKCEE "as passing English is a must..." Her advice is based on his PTSD and its impact on his personality functioning (passivity, being asocial and inexpressive), as well as the significant impairments in his visual delayed memory and poor sequencing ability, affecting his English and his average to low average school results.

29.Mrs Chung advises that the 8th plaintiff's future job opportunities will be limited to office clerk, semi-skilled technician, salesperson etc. and he will not be able to engage in jobs that require post-secondary qualifications, such as middle level management, administrative or professional jobs.

VISION ASSESSMENT

30.Mr Gunter Wong, an optometrist, assessed the 8th plaintiff's vision in March 2000. No ocular abnormalities were detected.

31.After the PET scan results were known, the 8th plaintiff was sent for more vision testing because he continued to have learning problems like skipping lines when reading and difficulties with English. Dr Ko Sai Cheong examined the 8th plaintiff at the end of March 2001 and advised that the 8th plaintiff had inadequacy of functions in multiple areas of visual perception, and that this was particularly significant in the areas of visual form constancy, visual figure-ground and visual closure. His visual memory and visual sequential memory were also impaired, albeit to a lesser degree. His visual tracking, pursuit and fixation ability were also found to be inadequate. In other words, although the 8th plaintiff can see objects clearly, he has difficulty locating them in space with speed and precision - like tracking letters etc. He also has visual perceptual inadequacies, which cause difficulties integrating, understanding and learning from visual information. Consequently he will have difficulties concentrating "and will likely learn below his natural potential."

32.Dr Ko advises that the visual functional deficit correlated well with the findings of metabolic dysfunction of his temporal lobe and hippocampus as documented in the PET scan.

33.Dr Ko further recommends Visual Perceptual Motor Integration Therapy so as to improve the 8th plaintiff's learning ability and efficiency. Dr Ko also recommends a course of word recognition and spelling training. The cost of this treatment is $99,300.

PAEDIATRIC ASSESSMENT

34.Dr Lillian Ko, consultant paediatrician, first examined the 8th plaintiff in April 2000, before the PET scan was carried out. On that occasion she found the 8th plaintiff to be largely normal apart from hearing hypersensitivity to some medium and high pitched tones. Dr Ko advised that the 8th plaintiff suffered PTSD over a year after the accident, and there could be survivor's guilt if he realises that his mother sacrificed herself to save him form serious harm.

35.After the PET scans results were obtained, and the further reports referred to above became available, Dr Ko re-examined the 8th plaintiff and reviewed her recommendations. In her third report, she advised that in addition to the PTSD, he had sustained hypoxic brain injury for "in spite of a high average intelligence (IQ 120) Shui Tak is now performing very poorly in school. This learning disability is due to a specific memory deficit caused by hypo function of his right anterior mesiotemporal lobe of the hippocampus of his brain, as a result of hypoxic injury."

36.Dr Ko states that the 8th plaintiff's brain damage may affect his non verbal and topographic memory. His difficulties with visual delayed memory will cause him difficulties consolidating, storing and retrieving newly learned visual/non-verbal material. He is and will be poor at sequencing alphabets. Dr Ko also noted that the 8th plaintiff had poor reading comprehension, often skipping lines when reading, difficulty completing assignments in time, missing words when copying, requiring repeated instructions etc. It was therefore not surprising that he lost patience and got irritable when he could not cope with his academic work. His academic results were progressively declining.

37.When provided with the re-assessment report of the 8th plaintiff's visual problems by Dr Ko Sai Cheong, Dr Lillian Ko recommended Visual Perceptual and Motor Integration Training and remedial teaching by an Educational Psychologist. She also recommended private tuition for the rest of his school life so that he would not fall too far behind the rest of his class.

38.Dr Ko also states that but for the accident, the 8th plaintiff would have had more than a 50% chance of obtaining a degree after completing tertiary or university education. In her opinion, he still has more than a 50% chance of completing Form 5 on condition that he is given intensive treatment, remedial teaching and psychotherapy. However, she believes that he has a less than 50% chance of passing the HKCEE or being accepted into Form 6 or attending university. This belief is based on his significant memory impairment, visual and auditory perceptual dysfunction, the effects of PTSD and its impact on his personality. His career prospects are restricted to those of a Form 5 graduate such as office clerk, salesperson, semi-skilled technician. He would not be able to engage in jobs in middle management, or administrative and professional careers.

PAIN SUFFERING AND LOSS OF AMENITIES

39.The injuries and resultant disabilities of the 8th plaintiff as stated above has not in any way been challenged by the 2nd and 5th defendants at the hearing of the assessment. Nor have they adduced any counter evidence to challenge the findings of the medical experts of the 8th plaintiff.

40.Based on the aforesaid injuries and resultant disabilities of the 8th plaintiff, the parties are in fact in agreement that those injuries of the 8th plaintiff put him in the Serious Injury category as it is understood in the case of Lee Ting Lam. Moreover the parties are also in agreement that a reasonable award for the 8th plaintiff for pain suffering and loss of amenities would be an amount of $550,000.00 and with which I agree. Therefore that sum will be awarded to the 8th plaintiff under this head of damage.

SPECIAL DAMAGES

41.The 8th plaintiff's claim for special damages consisting of pre-trial medical and travelling expenses have been conceded by the defendants and will accordingly be awarded in the respective sums of $25,500 and $757 thereby making a total amount of $26,257.00.

FUTURE MEDICAL EXPENSES

(A) Psychiatric treatment

42.Dr Singer has recommended psychotherapy, including desensitisation procedures, assertive training, social skill training and play therapy to release pent up emotional release. His recommendation is estimated to cost in the region of $519,000.

43.Dr Lillian Ko has also recommended psychotherapy for the 8th plaintiff and his family and follow up sessions for him with a developmental paediatrician.

44.The PTSD of the 8th plaintiff has become chronic and it is foreseeable that he will need treatment for many years to come and possible occasions when he will have relapses. On the other hand, I cannot rule out the possibility that some improvement will occur with treatment and/or with the resolution of these proceedings.

45.In all the circumstances, I take the view that a reasonable (but discounted from what is estimated by Dr Singer) award for such treatment would be an amount of $350,000.

(B) Alternative learning strategy

46.Alternative learning strategy has also been recommended to the 8th plaintiff by the experts, in particular the consultant paediatrician, Dr Lillian Ko who estimates the cost to be in the region of $402,200. Once again allowing for possible overlap with the various other treatment recommended to the 8th plaintiff, I am of the view that the cost for this should be discounted down from what has been estimated.

47.Accordingly, I am of the view that $240,000 would be a reasonable figure to award under this head.

(C) Auditory therapy

48.The cost of Auditory Therapy recommended by Dr Lillian Ko is estimated to be in the region of $20,000.

49.The chance of this treatment overlapping with other recommended treatment is minimal and in view of the fact that the claim and the amount under this head is conceded by the defendants, it will be allowed in full.

FUTURE COST OF A PRIVATE TUTOR

50.The 8th plaintiff, now 10 years old and a student, claims for the future cost of a private tutor in view of his poor schoolwork due to the accident. The amount claimed is $96,000 which is based on the tutor charging $1,200 per month for 10 months in each year for the next eight years while the 8th plaintiff remains a student.

51.The defendants are prepared to concede an amount of $48,000 under this head of claim.

52.I take the view that the claim by the 8th plaintiff under this head of damage is not unreasonable in principle, but in view of the fact that there is more than a possibility that the parents of the 8th plaintiff may well have engaged a private tutor for the 8th plaintiff in any event even without the accident, it would be reasonable to discount the amount claimed by 50%. Accordingly there will be an award of $48,000 under this head of claim.

FUTURE LOSS OF EARNINGS CAPACITY AND MPF

53.Under this head, the same submissions made on behalf of the 4th and the 6th plaintiff have been adopted in the case of the 8th plaintiff by his counsel. I do not propose to repeat those submissions all over again. It suffices to say that I take the view that the multiplicand/multiplier method is the proper method to adopt in assessing the loss under this head of claim.

54.In so far as the multiplicand is concerned, again the submission runs on similar lines as had been submitted in respect of the 4th and 6th plaintiff. I prefer the alternative approach suggested by counsel for the 8th plaintiff and will accordingly use $18,000 as representing the differential the 8th plaintiff could have earned but for the accident, on the assumption as opined by the various experts that he would probably have obtained a degree after tertiary or university education, and the earnings the 8th plaintiff will be able to make because of his disabilities resulting from this accident.

55.As for the multiplier, I shall adopt a multiplier of ten rather than the conventional maximum multiplier to take account of the fact that it will be a number of years before the 8th plaintiff will begin to earn.

56.I shall further discount by 50% to reflect the uncertainties of life which would have faced the 8th plaintiff had it not been for the accident. In this way, I arrive at the figure of $1,296,000 as being the amount of loss of earnings capacity in respect of the 8th plaintiff.

57.To that I would include an amount of $64,800 being 5% of the amount of loss of earnings capacity to reflect the loss of Mandatory Provident Fund. Totally it comes to $1,360,800.

INTERESTS

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

SUMMARY OF ASSESSMENT

$

PSLA $550,000

Special Damages 26,257

Future Medical Expenses 610,000

Future Cost of Tutor 48,000

Future Earnings and MPF 1,360,800

Sub-total: 2,595,057

Interests on PSLA 44,000

Interests on Special Damages 11,028

Total: 2,650,085

The total amount of damages assessed in respect of the 8th plaintiff comes to $2,650,085.

COSTS

59.There will be a costs order nisi that the costs of this assessment is to be borne by all the defendants to be taxed on a common fund basis if not agreed with certificate for two counsel. The 8th plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.