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

HCPI000828L/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 9TH PLAINTIFF

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1.This is an assessment of damages in relation to the 9th plaintiff arising out of the Albert House canopy collapse on 1 August 1994. Liability has already been tried and determined in favour of the plaintiffs against all 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 collapse the 9th plaintiff was a girl six years old and attending primary school. She is now 13 years old and attending Form I in secondary school.

3.At the time of the accident the 9th plaintiff was a passerby together with her mother (the 3rd plaintiff herein). Her mother was carrying a younger sibling being the 6th plaintiff herein. The 9th plaintiff was walking beside her mother when the canopy collapsed onto all three of them. The 9th plaintiff was buried by sand and debris. She tried to remove the sand burying her but could not. She found it difficult to breathe and became scared. When she was finally rescued the situation was chaotic and she saw her mother covered in blood which made her afraid.

INJURIES AND TREATMENT

4.The 9th plaintiff sustained superficial physical injuries from the accident and although she was taken by ambulance to the Accident and Emergency Department of the Queen Mary Hospital, she was discharged on the same day after the superficial injuries had been tended to.

5.After discharge from the hospital and due to the fact that her mother, the 3rd plaintiff, being injured herself and therefore unable to look after her, it was arranged by the family for the 9th plaintiff to live with her aunt temporarily. It was only then that odd behaviour on the part of the 9th plaintiff was noticed: for the first two weeks the 9th plaintiff did not accept her mother and was afraid of the mother's bandages. She would not go near to her mother but preferred to stay with her aunt. Her personality changed and she became indecisive and unable to express her views to others. She became more and more timid.

6.According to the 9th plaintiff's father, in the first few years after the accident, he noticed that she was anxious when she saw news reports of accidents and would ask for the television to be turned off. This only changed some six years after the accident. Furthermore the 9th plaintiff avoided talking about the accident or walking past the accident site and had a fear of overhanging objects as well as construction sites.

7.She had problems falling asleep and had frequent nightmares up to two or three years after the accident. At times she would wake up in the middle of the night and cry bitterly. Although less frequent now, she still has nightmares from time to time. She is afraid of the dark and used to insist that one of her parents slept in the same room with her. She slept with the door open and the lights turned on just outside the room. She can only sleep if there is someone else in the house.

8.She has become withdrawn and does not take the initiative to participate in school life. Her social activities are restricted. She does not want to go out alone. In April 2000 she refused to attend a school camp for fear that she would not be able to sleep and would have unwanted memories of the accident. She has very few friends in school and seldom chats with them or plays with them. Unlike other girls of her age, she prefers to stay at home when there are no lessons but at the same time is afraid of staying at home alone. She is also afraid to take the lift on her own. At times she complains of headaches, abdominal pains, and dizziness.

9.Unfortunately, the psychiatric problems of the 9th plaintiff was not identified or foreseen when she was treated for the minor physical injuries at the Queen Mary Hospital immediately after the accident. Nor were these problems and disabilities medically identified and recognised until almost six years after the accident by Dr Lillian Ko and Mrs Hannah Chung in the course of their preparing reports on her younger sister, the 6th plaintiff. Thereafter, in addition to investigating the psychiatric problems of the 9th plaintiff, a neurological assessment and PET scan were done to rule out brain damage. Fortunately these investigations have confirmed that the 9th plaintiff did not sustain any discrete brain damage.

PSYCHIATRIC ASSESSMENT

10.The 9th plaintiff was examined by Dr Singer, a psychiatrist in May 2000 and again in April 2001. After reviewing the history of the accident which the 9th plaintiff went through as well as her behaviour, or so much of it as was known and could be related to him by other family members, Dr Singer came to the conclusion that the 9th plaintiff was suffering from Post Traumatic Stress Disorder (PTSD) being a direct consequence of the accident as evidenced by those symptoms (which have already been referred to above) and further advised that her dizziness and headaches maybe due to Post Concussional Syndrome or somatic experiences of tension and increased arousal which are features of the PTSD. This diagnosis by Dr Singer was confirmed by him after his second examination of the 9th plaintiff in April 2001.

11.Dr Singer further stated that although some of the features of the PTSD had improved, i.e. nightmares, flashbacks, fear of the site, others such as irritability, social anxiety, and withdrawal had worsened. These social fears made her more difficult to treat. On the whole her condition had been of the same severity, namely moderate over the years.

12.Dr Singer was further of the opinion that the disturbances suffered by the 9th plaintiff caused her to have clinically significant distresses, impairment in social functioning and probably academic functioning. Academic impairment exists if she could have done better but for the accident, regardless of how she compares with her peers. Her studies are handicapped by her headaches and dizziness which she says occurs about once a week forcing her to rest and refrain from studying. Moreover the 9th plaintiff says that her concentration is impaired and with which Dr Singer agrees.

13.Dr Singer further advised that although her cognitive functioning was relatively intact, she was impaired in the emotions, in the social functioning, and in her psychological functioning. Although she does relatively well at school work which requires dealing with symbols and not with people, as she approaches adulthood and work situations she will have to deal with people. She will then be significantly handicapped by her irritability and impairment in social functioning.

14.As to prognosis, Dr Singh advisers that as her condition has remained static for the past six years, it is likely to be permanent. It is known that PTSD which has become chronic can last for decades. It can relapse after years of remission. It can also improve with treatment.

15.Dr Singer recommended treatment in the private sector for a number of reasons. The therapists in the public sector were of varying skills and experience. Patient was not sure of seeing the same therapists on each occasion. The length of the sessions in the public sector was grossly limited, about 10 to 15 minutes or less per session which is insufficient for effective psychotherapy.

16.Dr Singh recommends fortnightly treatment for three years consisting mainly of psychotherapy including desensitization procedures, assertive training, and social skills training. He further advised that medication maybe required. Thereafter there can be maintenance treatment for a further five years. Indefinite follow up every three months would be required. In total the recommended treatment is estimated to cost $519,000.

17.In his opinion, the 9th plaintiff has a 30% impairment of the whole person without treatment and 15% with treatment. Dr Singer estimated that her permanent impairment of earning capacity was 50% without treatment and 25% with treatment. He further advised that in his opinion the 9th plaintiff has less than a 50% chance of passing From 6 and going on to university. The careers more within her ability are secretarial, bookkeeping and those requiring average intellectual ability and minimal social capacity. She could no longer be a lawyer or doctor, teach or work in the public relations or hotel industry.

THE PET SCAN

18.Three of the other children who were injured in this accident showed brain damage on PET scanning. A PET scan was performed on the 9th plaintiff in March 2001 by Dr David Yeung, an expert in nuclear medicine. He found that the PET scan relating to the 9th plaintiff was "essentially within normal limits".

THE NEUROLOGICAL ASSESSMENT

19.Dr Huang Chen Ya examined the 9th plaintiff and noted in his report dated 11 April 2001 that she suffered from dizziness, which occurred two to three times per month. These dizzy spells were such that she would be compelled to lie down and rest. However Dr Huang was of the opinion that the 9th plaintiff had no neurological impairment. He attributed the dizziness to anxiety and PTSD as diagnosed by Dr Singer. In his view any effect on education or future employment would be consequential to the psychiatric problem of PTSD.

THE PAEDIATRIC ASSESSMENT

20.Dr Lillian Ko, consultant paediatrician, examined the 9th plaintiff in April 2000 which was the first occasion that anyone was alerted to the fact the 9th plaintiff may have suffered PTSD.

21.In the subsequent reports dated the 22 April 2001, Dr Ko advised that the 9th plaintiff has more than a 50% chance of completing Form 5, passing Form 5, being accepted into From 6, passing the A Level Examinations, attending a tertiary institution or university and obtaining a degree. However Dr Ko does qualify this advice by saying that this was "on condition that she recovers from the effects of PTSD with intensive psychotherapy".

22.In her latest report, Dr Ko states that although the 9th plaintiff is in a Band One school and has a superior IQ, her PTSD is likely to affect her school work. Dr Ko recommends Alternative Learning Strategy Training by an Educational Psychologist offering learning assessment and remediation. This treatment is estimated to cost $180,000. In the same report Dr Ko further recommends private tuition for the 9th plaintiff.

THE PSYCHOLOGICAL ASSESSMENT

23.After the possibility of PTSD was identified by Dr Ko, the 9th plaintiff was referred to a clinical psychologist, Mrs Hannah Chung, in April 2000, who, after reviewing the history of the entire matter relating to the 9th plaintiff, concluded that she was suffering from classic PTSD and recommended psychotherapy for her.

24.Mrs Chung re-examined the 9th plaintiff again April 2001 when she conducted in intelligence and memory assessment of the 9th plaintiff. As result of the test, she found that the 9th plaintiff was a very diligent and conscientious student. Although the 9th plaintiff found school work to be very hard due to the change to English as a medium, she devoted a lot of time to her studies. In the mid-term she did very well and came 7th out of 43 in her class.

25.Under formal testing, her verbal IQ was in the superior range, scoring 120, her performance IQ was 118 and her full-scale IQ was 121 i.e. superior. Her General Memory Index was 108 i.e. average. Her Attention/Concentration Index was 131 i.e. very superior and all other Indexes were average except Verbal Delayed Index which was high average. This meant, according to Mrs Chung, that the 9th plaintiff suffered no deficits in memory and in intelligence. She was strongest in her abstract reasoning. Her mental arithmetic, word knowledge and social practical judgment were all above age norm. In non-verbal abilities, she was best in writing speed and had the ability to see part-whole relationships. She scored average marks in the learning and memory tests.

26.These results are consistent with the PET scan results showing no brain damage or any damage that would affect her cognitive/memory function.

27.Mrs Chung advises that about 16 to 18 percent of children in Hong Kong will be would get to university and then obtain a degree. Based on the results of the above testing for the 9th plaintiff, she had more than a 50% chance of obtaining a degree before the accident. Mrs Chung advises that although the 9th plaintiff did not suffer any detectable brain damage, the PTSD and its effects on her personality and social functioning, if left untreated, may affect her overall functioning. However, Mrs Chung still concludes that the 9th plaintiff has more than a 50% chance of obtaining a degree.

PAIN, SUFFERING AND LOSS OF AMENITIES

28.From what has been stated above, it appears that the injuries to the 9th plaintiff is purely psychiatric and/or psychological in nature. Whatever physical injuries there may have been as a result of the accident is quite minimal relatively speaking.

29.The categories of injuries laid down in Lee Ting Lam covers basically physical injuries and disablement. Without trying to fit the injuries suffered by the 9th plaintiff into any of the categories as laid down in Lee Ting Lam, it suffice to say that the parties are in agreement that the amount of $500,000 would be a reasonable award to compensate the 9th plaintiff for pain suffering and loss of amenities and with which I am in agreement. That sum would therefore be awarded under this head.

SPECIAL DAMAGES

30.Special damages claimed include firstly, medical expenses in the amount of $21,000. These relate to psychological consultations provided by Dr Katherine Kot to the 9th plaintiff between November 2000 and March 2001. This claim is fully supported by receipts and has not been disputed or challenged by the 2nd and 5th defendants.

31.There is also a claim for travelling expenses incurred when attending the psychological consultations in the amount of $409. This claim has not been disputed by the defendants.

32.Thirdly there is a claim in the amount of $6,375 for tonic food provided to the 9th plaintiff. This claim has also not been disputed by the defendants.

33.In my view the above claims and the amounts claimed are reasonable and will be allowed in full. Accordingly the total special damages comes to $27,865.

FUTURE LOSSES AND EXPENSES

34.The future psychiatric treatment and medication recommended by Dr Singer in the private sector is estimated to cost $519,000. There has also been recommendation by Dr Lillian Ko for the cost of an Educational Psychologist estimated to be in the region of $180,000. In my view there would necessarily be some overlap in both these recommendation, possibly even a total overlap.

35.On the other hand I also bear in mind the advice of the experts, in particular that of Dr Ko, that the future prospects of the 9th plaintiff very much depends upon her overcoming her PTSD with extensive treatment, and in that respect also the advice of Dr Singer that the treatment obtained from the private sector would likely be more beneficial to the ninth plaintiff.

36.In all the circumstances, both discounting the final award to take account of the possible overlap, but the same time making sure that the 9th plaintiff will be able to receive better treatment from the private sector, I take the view that and award of $520,000 would be sufficient to serve that purpose. This sum would therefore be awarded to cater to the future medical expenses of the ninth plaintiff, both psychiatric and psychological future treatment.

37.There is also a recommendation for future Alternative Learning Strategy Training. I take the view that this would be outside the sphere of psychiatric and psychological treatment and in that respect would not overlap with those treatment. The recommendation for future Alternative Learning Strategy is estimated to cost $150,000. I accept that this recommendation is both necessary and will be beneficial to the 9th plaintiff to overcome as much as possible her present disabilities caused as a result of the accident. Accordingly the estimated amount of the recommendation will be allowed in full.

38.There is also a claim by the 9th plaintiff for the future cost of private tutor in the amount of $90,000. This is disputed by the 2nd and 5th defendants.

39.In so far as this claim is concerned the 9th plaintiff acknowledges the possibility of overlap with the Alternative Learning Strategy Training and has indicated in final submission that it should be discounted down to $20,000 which is acceptable to the defendants.

40.I agree with this suggestion and will allow the discounted sum of $20,000 as being the future cost for private tutor.

LOSS OF FUTURE EARNINGS CAPACITY

41.The 9th plaintiff was six years old at the time of the accident in August 1994, and now only 13 years old. It will be quite a few years before she will be able to earn a living. The same argument that has been put forward on behalf of the 4th, 6th and 8th plaintiffs herein has been submitted on behalf of the 9th plaintiff as well - namely that for the assessment of loss of future earnings capacity, the proper approach should be the multiplicand/multiplier approach in assessing the lost chance of this plaintiff. For the same reasons given in the assessment of those other plaintiff in which this argument has been made, I accept that to be the proper approach.

42.In so far as the multiplicand is concerned, again the submission runs on similar lines as had been submitted in respect of the 4th, 6th and 8th plaintiffs. I prefer the alternative approach suggested by the plaintiff's counsel and will accordingly use $12,000 per month as representing the differential the 9th plaintiff would have earned but for the accident and the earnings the 9th plaintiff will be able to make due to the disabilities arising from this accident.

43.As for the multiplier, I shall adopt a multiplier of 13 rather than the conventional maximum multiplier to take account of the fact that it will be a number of years before the 9th plaintiff will begin to earn.

44.I shall further discount by 70% to reflect the uncertainties of life which would have faced the 9th plaintiff. I have selected a higher percentage of discount for the 9th plaintiff than for the other plaintiffs because her position is somewhat different from them in that her chances of recovering with intensive treatment and going to university is better than the other plaintiffs. In this way I arrive at the figure of $561,600 as being the amount of loss of earnings capacity in respect of the 9th plaintiff.

45.To that I would include an amount of $28,080 being 5% of the amount of loss of earnings capacity to reflect the loss of Mandatory Provident Fund. Totally it comes to $589,680

INTERESTS

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

SUMMARY OF ASSESSMENT

		$
PSLA		500,000
Special Damages		27,865
Future Psychiatric Treatment		520,000
Alternative Learning Strategy		150,000
Future Costs of Tutor		20,000
Future Earnings Capacity		589,680
	Sub-total:	1,807,545
Interests on PSLA		40,000
Interests on Special Damages		11,704
	Total:	1,859,249

47.The total amount of damages assessed for the 9th plaintiff therefore comes to $1,859,249.

COSTS

48.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 common fund basis if not agreed. The 9th 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 9th 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