Ng Chi Chung v. Lau Kam Ping
Read the full judgment text of HCPI 338/1998 on BabelCite. This High Court CFI judgment was delivered on 31 March 2000.
1. On 24 April 1996, the plaintiff, then a 23 years old student, was riding his bicycle on a service road at To Yuen Wai Tsuen, Tuen Mun, when he was knocked down by a lorry driven by the defendant.
Cited by 7 cases · Cites 2 cases
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HCPI000338/1998 HCPI 338/98 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES ACTION NO. 338 OF 1998 ____________________
____________________ Coram: Deputy Judge Chu in Court Dates of Hearing: 20, 21 March 2000 Date of Judgment: 31 March 2000 ____________________ J U D G M E N T ____________________ 1. On 24 April 1996, the plaintiff, then a 23 years old student, was riding his bicycle on a service road at To Yuen Wai Tsuen, Tuen Mun, when he was knocked down by a lorry driven by the defendant. 2. The Writ herein was issued on 31 March 1998. Liability was initially contested. At the commencement of this trial, the defendant consented to judgment on liability be entered against him. The parties also agreed that contributory negligence should be assessed on a 20% basis. The only issue at the trial is therefore the quantum of the damages. 3. The various medical and expert reports and other documents were agreed for production. The plaintiff and his mother were the only witnesses called at the trial. Injuries and Treatment 4. The plaintiff was admitted to Tuen Mun Hospital after the accident in an unconscious state. He suffered crush injuries to the left forearm and left hand, dislocation of the left radial head, fracture of the left 2nd metacarpal, right brachial plexus injury and right hemothorax. He had a surgery done on the same day to treat his right forearm. He was then transferred to the intensive unit where he remained unconscious until the third week after the accident. Thereafter, he remained in a confused state for about 2 weeks as a result of his being put under sedation for the purpose of managing his multiple injuries. 5. The plaintiff was hospitalized for a total of 7 months and was discharged on 1 December 1996. During his hospitalization, he underwent 3 surgical operations on the right upper extremity and 8 surgical operations on his left upper extremity. These operations involved a complex reconstruction of the right brachial plexus system. Flap coverage, debridement and skin and muscle grafting were done for the left forearm. As for the left hand, the radius was removed, plating was done to the metacarpal bone and the wrist joint was fused. A major operation was performed at the Prince of Wales Hospital in November 1996 to reconstruct the nerve system to his right side. The plaintiff had to re-learn some of his daily skills, such as walking, writing and feeding himself. At the time of his discharge from hospital, his right arm could not perform any function while the left hand could perform very limited activities. 6. The plaintiff attended follow up treatment after his discharge from hospital. He is continuing with these follow up sessions at Tuen Mun Hospital at intervals of 3 months. He also received intensive rehabilitative treatment for about a year after being discharged from the hospital. He continues to receive physiotherapy and occupational therapy treatments from Tuen Mun Hospital at the frequency of twice a week up to date. Disabilities an Impairment 7. The plaintiff is 27 at trial. Before the accident, his preferred hand was the right hand. As a result of the accident, his right upper arm is paralyzed with a complete loss of sensation. His right arm could not perform any function. He needs to wear a shoulder immobilizer to keep the arm immobilized and in place. As to his left arm and hand, the functions are impaired. As the wrist is fused, he cannot perform pronation nor supination. There is also decreased thumb extension. The power grip and lateral pinch are reduced to about 50 to 60% of the expected normal strength. 8. The plaintiff is assessed to be suffering from a 77% impairment of the whole person by his expert, Dr S.Y. Lee. The defendant's expert, Dr S.Y. Chun, assessed him to be suffering from a 80% permanent disability in relation to the orthopaedic condition, and 84% loss of earning capacity. 9. Effectively, the plaintiff has lost the use of his right hand. He has since the accident learnt and changed to use his left hand to manage his basic daily activities. However, he still has difficulties with some of the daily activities, including getting dressed and undressed, opening and handling an umbrella, handling hair dryer and holding heavy objects. He requires assistance when washing his hair and bathing due to the impairment of the right hand and the limited movement in his left wrist. He is further unable to undertake activities which require co-ordinations of both hands, such as tying shoe laces, squeezing toothpaste, wringing towels and dining with knife and fork. 10. Before the accident, the plaintiff was a keen swimmer and active in sports. As a result of the injuries to his upper limbs, he can no longer take up swimming and ball games. 11. The accident also left the plaintiff with considerable cosmetic injuries. There are multiple large, raised and pigmented surgical scars. There are also marks left from skin and muscle grafting and stitching. These scars and marks are scattered over his neck, left and right upper and forearms, chest, abdomen and also his left and right legs. As depicted in the photographs annexed to Dr Ian Nicolson's report, they are conspicuous and unsightly. 12. Counsel are in disagreement over the current psychological and psychiatric condition of the plaintiff. Dr Benjamin Lai, who interviewed the plaintiff in July 1998, considered him to be suffering from depressive illness as manifested in an irritable mood, uneasy feeling of life being beyond his control, loss of hope for the future and social withdrawal. Dr Lai attributed the cause of the depression to the physical and social disabilities brought about by the physical and cosmetic injuries. He further observed that because of the optimistic personality of the plaintiff and his tendency to forget the mood disturbance, it is not easy to discern the features of his depressive illness. He concluded that the plaintiff requires psychiatric treatment in the form of basic psychotherapy and crisis medication. 13. Dr Connell, the defendant's psychiatrist, in his report dated 6 September 1999, took the view that the plaintiff does not suffer from any psychiatric disorder. Like Dr Lai, he observed the plaintiff to be of strong personality while accepting, at the same time, that the plaintiff would become more vulnerable to disappointment and frustration than he would be before the accident. Dr Connell did not think, however, that the plaintiff would develop psychiatric illness when faced with crisis in future. 14. There is also a report from Ms Ide Chan, the clinical psychologist of Tuen Mun Hospital to whom the plaintiff was referred in May 1997. She did not detect any immediate psychological risk. 15. Looking at these reports and having the benefit of seeing and hearing the plaintiff giving evidence in court, I consider that the views of Dr Connell on the plaintiff's current psychiatric condition is to be preferred. It was more than a year since Dr Lai interviewed the plaintiff and even if he was depressed then, it does not mean that he is still suffering from depressive illness. There is no evidence that he had been attending any psychiatric treatment or counselling since then. Yet the plaintiff appeared calm, relaxed and cheerful when he testified. Indeed, he impressed me as having made significant achievement in coping with and overcoming his rather substantial injuries and impairment, and getting on with his life as best as he could. His decision to return to college to continue with his studies within a year of the accident and the subsequent graduation are but some of the indications of his commendable efforts and determination to make the best out of what he had and could do. I should also mention that I am equally impressed by his mother's cheerful and optimistic personality. There can be no doubt that she has provided solid and strong console and support to the plaintiff since the accident. 16. I do not consider that the plaintiff is suffering from any psychiatric illness or disability. I, however, accept, as observed by these experts, that the plaintiff suffers setback in terms of his personality and outlook on life as a result of the injuries and physical impairment. His more irritable mood and the tendency to avoid crowds are some of the manifestations of his reduced confidence and low esteem. There is also a real risk that he will encounter some crisis in future, whether arising from his work, family or courtship, which may require professional assistance. Award for Pain Suffering and Loss of Amenities 17. Both counsel referred to Mak Yiu Keung v. Ho Cheung Kar [1995] 3HKC 575 and Pang Wai Chung v. Hoi Tat Rubber Factory [1996] 2 HKC 556 as appropriate comparable. In Mak Yiu Keung, there was a near amputation of the non-preferred hand with lengthy treatment and 12 operations in 4 years, but the hand remained useless. The plaintiff was considered to fall within the lower end of the substantial Injury category. In Pang Wai Chung, the plaintiff's right arm was amputated at below the elbow level resulting in residual muscle cramps and numbness. The plaintiff also suffered from embarrassment caused by the false hand. Cheung J held that the injury fell within the middle to upper range of the substantial injury category. 18. The physical injuries and functional disabilities suffered by the plaintiff in the present case are more serious than those in the 2 cases cited above. Although the right hand was not amputated, it was paralyzed and functionless. In addition, the remaining left hand is also impaired to a significant extent. The plaintiff had also undergone quite a number of operations, i.e. 12 operations within 8 months, and is still receiving treatment 4 years after the accident. On these considerations alone, the plaintiff would have come within the upper end of the substantial injury category. 19. In Chan Pui Ki v. Leung On [1996] 2HKLR 401, the award for substantial injury category had been revised to between $540,000 and $660,000. Considering the inflation rate since the decision, which was 3-1/2 years ago, but accepting that no allowance should be made for inflation since 1998, I would agree with counsel for the plaintiff that the figure for the upper end of the substantial injury category should now be $792,000. 20. Counsel for the plaintiff had urged me to make a separate award for the cosmetic injuries. The authorities he cited to me, namely, Chu Tik Kwan v. Liu Tik HCA. A2623 of 1988 (unreported), Li Soo Yee v. Ho Tak Cheung HCA. A11720 of 1982 (unreported), Li Chim Ying v. Siu Nam HCA. 3527 of 1984 (unreported) and Tse Yim Kwong v. Mak Yuk Koi HCA. A2118 of 1987 (unreported), do show that the Courts had in the past made separate awards for cosmetic injuries. Counsel for the defendant, on the other hand, submitted that there is no justification for making a separate award, relying on the authority of Chiu Po Hing v. Lo Suen HCA. A1434 of 1988 (unreported). In Chiu Po Hing, the late Master J. Chan (as he then was), in refusing to make a separate award for cosmetic injuries, said :
21. There is great force in the reasoning given by the learned judge and I respectfully adopt it. It is also to be noted that the authorities referred to by counsel for the plaintiff were all decided before Chiu Po Hing, and the justification or reasoning for making a separate award for cosmetic injuries had not been canvassed in those cases. 22. While I consider that there should be no separate award for cosmetic injuries, I am of the view that in assessing the award for pain suffering and loss of amenities, there should be an upward adjustment to take into account the cosmetic injuries. In Chiu Po Hing, the learned judge, after quoting a passage from Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd [1988] 2 HKLR 650,635, observed (at p.9) that :
The learned judge in that case also, after taking into account the unusual multiplicity of surgeries, cosmetic injuries and other factors, advanced the plaintiff from the upper end of the serious injury category to above the middle of the substantial injury category. 23. In the present case, the cosmetic injuries of the plaintiff are no doubt unsightly, conspicuous and permanent. Those on the 4 limbs are particularly disfiguring. As a young man of 27, he will have to put up with these injuries for many more years to come. The injuries, apart from posing considerable embarrassment to the plaintiff, also affects his lifestyle. He will probably have to adhere to long sleeves garments and trousers so as to conceal the scars and marks on the 4 limbs. It is reasonable to infer that the injuries will also affect him adversely in socializing and courtship. Having regard to the matters outlined above, I consider that the award for pain suffering and loss of amenities should be adjusted upward to $1 million, so as to place the plaintiff slightly above the upper end of substantial injury. Pre-trial Loss of Earnings 24. At the time of the accident, the plaintiff was a final year student in the Bachelor of Business (Marketing) course of the then Lingnan College . He returned to continue with his studies in February 1997 and graduated in July 1997, one year later than scheduled. He was then offered temporary employment by the college on compassionate ground. He worked as a research assistant on yearly contract terms. His current contract is due to expire on 30 June 2000. He started with a salary of $7,165, which was revised to $8,047.50 in July 1998 and then to $8,550 in July 1999. The total earnings of the plaintiff since the accident and up to trial is $259,400. 25. In calculating the pre-trial loss of earnings, counsel for the plaintiff proceeded on the basis that the plaintiff would probably have become a civil servant but for the accident. I do not consider that this basis is borne out by the evidence. The Graduate Employment Surveys of Lingnan College for the years 1996 and 1997 show that very few graduates from the college joined the civil service. This is particularly true for graduates of the BBA (Marketing) course. More importantly, when discussing his career plan, both before and after the accident, with Mrs Alice Tsang, his own occupational therapist, the plaintiff had made no reference to becoming a civil servant. He only mentioned the options of the fields of advertising, market research and sales. It was reported that his preference had been for more dynamic work that would not confine him to the office. 26. I am of the view that it is inappropriate to refer to the level of salary of civil servants for the purpose of this calculation. I agree with counsel for the defendant that the average salary of the graduates of BBA(Marketing) should be adopted as the basis for working out the pre-trial loss of earning. This was $9,747 for 1996 and rose to $10,784 in 1997, equivalent to a 10.6% rise. Accordingly, adopting the figure of $9,747 and allowing for a 10% increase between 1996 and 1998, the figure at trial is $11,794, with the median being $10,770.50. The pre-trial loss of earnings is therefore : ($10,770.50 x 45 months) - $259,400 = $225,272.50. Loss of Future Earnings 27. Both counsel considered it appropriate to adopt the latest salary as the level for assessing the future loss of earnings. Adopting the average salary of the 1996 BBA(Marketing) graduates of Lingnan College, the salary which the plaintiff is capable of earning at trial is $11,794. The working multiplier had been agreed at 15. The loss of the future earning is therefore : ($11,794 - $8,550) x 12 x 15 = $583,920. Loss of Earning Capacity 28. There is evidence from the college and from the plaintiff that there is a real risk that his present employment may come to an end in June this year when the current contract expires, as a result of the changes in the college policy of engaging research assistants. It is also not disputed that the plaintiff will suffer a handicap in the labour market by reason of his injuries. Counsel for the defendant, however, submitted that even if he were to lose his present job, he is likely to be able to find a job with a similar income level. Given the economic conditions, the cosmetic injuries and the fact that the plaintiff had to attend treatment for 2 afternoons each week, the choices of sedentary work that are available to the plaintiff are not that many. The suggestion of Dr Chun that he can work as library staff, insurance agent or cashier is, in my view, not realistic when one considers the physical and cosmetic injuries of the plaintiff. I accept that he will probably have difficulties in finding alternative employment if he were to lose the present job. I also have reservations that he will be able to earn at least a similar income if he were to go into a new job. This is an appropriate case for making an award for loss of earning capacity. An award representing approximately 18 months salary, i.e. $155,000, is appropriate. Pre-trial Loss of Earnings of Mother 29. After the accident, the plaintiff's mother had given up her employment to look after the plaintiff. For a brief period between November 1998 and March 1999, she had worked part-time in a fast food shop. 30. The defendant does not dispute the plaintiff's entitlement to this award, but says that no account of inflation should be given to the mother's salary. Having regard to the fact that the mother only had a 8% increase in her salary after 3 years of employment, I agree that it is improbable that she would have a 6% annual increment had she held on to the job. 31. Counsel for the defendant also submitted that the mother could have resumed work much earlier on once the plaintiff could travel independently and started employment. It is true that she only had to assist the plaintiff in carrying out the therapy exercises and in bathing during the evening. But considering that these activities would take up to 2 hours every night and that she had to carry out almost all the household chores, her opinion that it was not manageable to go back to work is, in my view, not unreasonable and understandable. I consider that she should be compensated for the entire period since the accident up to trial. The pre-trial loss of earnings of the mother is therefore : $5,200 x 13/12 x 45 months = $253,500. Special Damages 32. The defendant does not dispute the claims for medical expenses, travelling expenses and medical equipment. The initial amounts came up to $78,817 to which the defendant agreed. These figures were adjusted in the course of the plaintiff's final submission to $85,515.40. Having regard to the receipts produced and the breakdown given, I am prepared to accept this figure. 33. As for tonic food, the amount initially claimed is $100,000. This was adjusted at trial to $81,220, of which $56,730 is supported by receipt. I agree with counsel for the defendant that the amount claimed is too high. I am only prepared to allow $25,000. The total amount of special damages awarded is therefore : $85,515.40 + $25,000 = $110,515.40. Further Medical Treatment and Care (1) Surgical operation 34. Dr S.Y. Lee, in his report of 1 August 1998, referred to an operation to be performed for the purpose of fusing the right shoulder and wrist joints. This would do away with the necessity of wearing the immobilizer, but this will effectively mean giving up any hope of recovery of any function of the right upper limb. Dr Lee was of the view that although there may be further neurological recovery of the right upper limb, there is practically no possibility of it ever becoming a functional limb again. His observation on the recovery prospect of the right upper limb is shared by other medical experts. Dr Lee, however, described the decision whether to undergo the operation as a controversial one for the plaintiff. The plaintiff stated in court that he had not come to a decision on it yet. Obviously, the whole "controversy" boils down to the plaintiff's readiness and willingness to accept that he will never have a functional right upper limb again. His reluctance to give up hope for his right upper limb, hence the reservation about the operation proposed, is understandable. But I believe, with the passage of time, the plaintiff, with his strong personality, will eventually realize and accept that the right upper limb is practically lost and gone. He will then probably decide to go ahead with this operation. It is on this basis that I consider that allowance ought to be made for this future operation. Dr Lee estimated the costs of the operation to be between $50,000 and $100,000, if performed in the private sector. Counsel for the defendant pointed out that the plaintiff had hitherto had all his operations carried out in public hospitals where the costs are much lower. This indeed is the case, but I do not consider that the plaintiff should be deprived of an option to have the operation performed in the private sector. I adopt the mean figure quoted by Dr Lee and allow $75,000 under this award. (2) Physiotherapy treatment 35. Dr David Siu, the plaintiff's physiotherapist had stated in his report of 23 August 1998 that physiotherapy is an integral part of the plaintiff's rehabilitation programme. He recommended 3 sessions a week for a period of 3 years, and an intensive daily treatment programme for 4 to 6 weeks after each future operation. 36. Dr Siu's recommendation on regular treatment is out dated in the sense it is now nearly 1-1/2 years since he wrote the report and the plaintiff has since been on regular physiotherapy sessions of twice a week at Tuen Mun Hospital. All the major operations had also been accomplished. I agree with counsel for the defendant that the recommendations is no longer relevant. No award is to be made under this head. (3) Psychiatric treatment 37. Dr Lai's recommendation for regular psychiatric treatment and medication for crisis management is based on his perception that the plaintiff was under depressive illness. I have for reasons stated above considered that the plaintiff is not suffering from psychiatric illness. Dr Lai's recommendation is therefore not appropriate. On the other hand, I agree with Dr Connell that there ought to be some allowance for professional intervention when the need arises. He suggested that allowance be made for 12 one-hour counselling sessions in case the plaintiff should need them. This appears to me to be both reasonable and appropriate. Based on Dr Connell's recommendation, the defendant has suggested $36,000 be allowed for this head, and I agree. Loss of Pension 38. I agree with counsel for the defendant that there is no evidence as to the amount of loss of pension as claimed, i.e. $1.5 million. But as a result of the introduction by statute of the mandatory provident fund scheme, which will be effective by the end of this year, it is appropriate to calculate the award under this head by reference to the scheme. Counsel for the defendant had rightly pointed out that the plaintiff had not included the loss of benefit under the scheme in the Statement of Damages and the subsequent revisions. That, in my view, should not have prevented the plaintiff from recovering it since this is in nature similar to the pleaded loss of pension, both being provisions for retirement. 39. The loss of benefit under the mandatory provident fund scheme is represented by the employer's contribution and is calculated by taking 5% of the loss of future earnings : see, for example, Wong Hin Pui v. Mok Ying Kit & another HCPI 763/97 (unreported). In Ta Xuong v. Incorporated Owners of Sun Hing Building [1997]4HKC 171, at pp.180-1, the figure awarded under this head was significantly less than 5% of the future loss of earnings. That came about as a result of adopting 2 different multipliers in the course of calculation the net benefit that would have accrued to the plaintiff, who was a self-employed person. For the present plaintiff who is employed, it is not appropriate to adopt the approach used in Ta Xuong case, and the approach of 5% of the future loss is to be preferred. On this basis, the loss of benefit under the mandatory provident fund scheme is : 5% x $583,920 = $29,196. Aids Equipment and Appliances 40. The costs of shoulder immobilizer, long handled brush, slicing guide and knives, jar opener with one hand, electric can opener and left handed tools, totalling $14,052, are agreed. 41. I agree that the necessity for bath seats, extra costs of transportation and further psychological counselling sessions is not borne out by the evidence. 42. In respect of the costs of headphones, arm supports, adapted keyboards and mouse, counsel for the defendant had observed that the prices set out in the occupational therapist's report are higher than those quoted in the catalogues attached to the report. This, as counsel for the plaintiff submitted, is probably due to adjustment of prices as the report had noted that the prices in it are based on quotations obtained by phone in 1998. The costs of these items, being $86,700, are allowed as claimed. 43. As for the service of a handyman, while I accept that the plaintiff would probably have to use a handyman even without the accident, I cannot overlook the fact that, as a result of his injuries, the plaintiff now has to turn to a handyman even on very simple and small jobs, such as changing light bulbs, fitting wall nails and so on, things that he would otherwise be able to handle. It is therefore reasonable to allow for the costs of handyman service in the sum of $28,800 as claimed. 44. The total amount for aids equipment and appliances are therefore : $14,052 + $86,700 + $28,800 = $129,552. Future Care and Attention (1) Domestic helper 45. There is, in my view, considerable overlap in the plaintiff's claim in this respect by claiming for both the service of a domestic helper and that of a care assistant. I see no sound justification for contending that a domestic helper cannot or should not be expected to discharge the duties of providing personal and nursing care to the plaintiff. Domestic helpers, apart from carrying out household chores, do also look after and provide care and attention for old and disabled persons. It is also to be remembered that it is possible and open to the plaintiff to hire a male domestic helper. 46. Domestic helper service on a part-time basis is, however, both impractical and uneconomical. Given that the plaintiff is expected to continue with some form of employment, the time that he would require assistance, such as in bathing and doing physiotherapy exercises, would probably be in the evenings. It is unrealistic to expect a part-time domestic helper to work in the evenings on a daily basis. On the other hand, the costs of a part-time domestic helper, at the rate suggested by the defendant, is $4,500 per month, which is significantly higher than the monthly salary of a full time foreign domestic helper. 47. I allow the costs of the service of a full time domestic helper in the sum of $842,400 as claimed. I make no additional award for the transportation expenses for home leave because this figure is calculated on a monthly salary which is slightly higher than the current rate for foreign domestic helpers. (2) Relief staff 48. I do not consider it necessary to make an award for engaging relief staff. Given that the plaintiff is living with his parents and brothers at the moment or in future, if he were to marry, will be living with his wife, it is unnecessary and unlikely that he will need to resort to relief staff when the domestic helper is on leave. (3) Case manager 49. I agree with counsel for the defendant that the evidence does not demonstrate the need for a case manager. There will be no award under this head. (4) Miscellaneous 50. These are said in the occupational therapist's report to represent such costs as insurance, renewal of contract and immigration permits, food , electricity and water at the rate of $2,200 per month. I have to say that it is not altogether clear to me how the figure comes about. Such rough estimate is of assistance to the court and no award can be made on such basis. Alternative Accommodation 51. The plaintiff and his family members are now residing in a public housing unit of 361 sq. ft. The tenancy is held in the father's name. The unit is small and crowded as an accommodation for 5 adults, and it is all the more so given the conditions of the plaintiff. Mr Joseph Kwan, the architect appointed by Seagroatt J at the pre-trial review stage, is of the opinion that new accommodation of approximately 601 sq. ft. is required. 52. The defendant's objections to this item of award are basically threefold. The first proceeds on the basis that a full time live in domestic helper is not required. This ground is no longer relevant given my finding that a full time helper is necessary and justified. 53. Secondly, it was suggested that some adaptation work can be done to the present unit, so that there is no necessity for the plaintiff to move to new accommodation. Essentially, the defendant suggested that the space of the plaintiff's sleeping area can be enlarged by constructing built-in storage areas. However, the feasibility of such alteration or adaptation work is unknown. In the first place, it will appear by the photographs and floor plan of the unit that there are ventilation windows covered by wooden planks in the area where the parents' bed is put. The feasibility of building over-hanging cabinets or wall to wall cabinets in these areas are highly questionable. The same doubt is cast over the suggestion of having built-in cabinets in the balcony where there are also windows. More fundamentally, this being a rented public housing unit, there is serious doubt whether major renovation or alteration work can be freely carried out by the tenant. There is no evidence to show that the Housing Department would permit the work proposed by the defendant. Even if the space of the plaintiff's sleeping area and the living room can be enlarged as suggested, the toilet space remains inadequate to meet the plaintiff's needs. It is true that he and his mother or brother have managed to cope with the situation, but it does not mean that the space is in itself sufficient to cater for the plaintiff's needs. By the plaintiff's description in court, the toilet is about the area of the witness box. It is, as Mr Kwan put it, an awkward situation for the plaintiff and anyone helping him to be squashed in a cubicle of that size. 54. Thirdly, counsel for the defendant observed, and quite rightly so, that the crowded condition was already in existence before the accident. It is also true that the new accommodation proposed by Mr Kwan leads to greater space not only for the plaintiff, but to his other family members. Although the plaintiff had put up with the situation before the accident, the fact is the crowded condition is now rendered unacceptable by reason of his injuries and impairment. He and his brother might have used to getting dressed and undressed in the living room because the sleeping area is too small, but with the cosmetic injuries he sustains, it is only natural and reasonable that the plaintiff should now have more privacy and be able to carry out these activities not in the presence of the others. Similarly, although the plaintiff and his family have never been equipped with a proper shower area or a washing basin, the present toilet is just unsuitable or, to say the least, inadequate to meet the plaintiff's daily needs. 55. The alternative accommodation suggested by Mr Kwan does lead to an overall increase in space for the entire family and indirectly an improved quality of living, but this is inevitable. The plaintiff needs both the physical and spiritual care and support of his family members, a factor acknowledged by the psychologists and psychiatrists for both parties. It is therefore desirable that he should continue to reside with them until such time when he sets up his own home upon marriage, for instance. At the same time, it is unreasonable and unrealistic to expect the plaintiff, while at home, to confine his activities to his own bedroom and the living and utility areas. If he were to move around in the house, it is inevitable that the house must be fitted out in such a way that he can do so without difficulty. It is further to be recognized that the plaintiff is spending a significant portion of his time at home. As his evidence indicates, the frequency of his going out and socializing with friends will reduce in time as his friends become increasingly occupied in their work and families. Adequate amount of space at home is therefore needed, not only to cater for his functional needs, but also to alleviate the frustration and difficulties that may occur to the plaintiff in an overcrowded setting. I am convinced, on a consideration of the above matters that the plaintiff should be provided with the costs of an alternative accommodation. 56. In assessing the costs of the alternative accommodation, I consider it more appropriate to proceed on the basis of a purchase instead of on a rental basis. I agree with the plaintiff's counsel that there are a lot of uncertainties about the option of a rented accommodation. The idea of adaptation work may not find favour with landlords; there is also the question of reinstatement at the end of each tenancy. A purchased accommodation has the advantage of providing a permanent residence with greater flexibility in terms of the adaptation work to be carried out to suit the plaintiff's needs. 57. I will adopt the price quoted by the defendant's surveyor, which is more updated than the report of the plaintiff's surveyor, for the second cheapest option, Belvedere Garden. The cheapest option, Riviera Gardens, had been regarded by the defendant's surveyor to be unsuitable. The capital value has been estimated to be $2,028,000. From this figure, there should be deducted the rental of the plaintiff's present accommodation calculated at a multiplier of 15, having regard to the fact that the parents are aged 53 and 55. The amount to be deducted is : $1,385 x 12 x 14 = $249,300. The amount to be awarded is therefore : $2,028,000 - $249,300 = $1,778.800. The plaintiff should also be awarded the costs of adaptation work in the amount of $145,917. Interest 58. The interest on the pain suffering and loss of amenities is 2% p.a. from the date of the Writ (i.e. 31 March 1998) to the date of the trial, giving a figure of $40,000. The interest on the pre-trial losses is 5.67% p.a. from the date of the accident to trial, giving a figure of $125,297. The total amount is $165,297. Summary 59. The total sum to be awarded to the plaintiff is $4,424,296, the breakdown of which is as follows :
60. There will accordingly be judgment for the plaintiff in the sum of $4,424,296. There will also be an order nisi that the defendant pays the plaintiff the costs of this action, to be taxed if not agreed and the plaintiff's own costs be taxed in accordance with the Legal Aid Regulations. The order nisi to be made absolute at the expiration of 14 days from the date of the handing down of judgment.
Representation: Mr C Wong instructed by Messrs. Susanna Wong & Co. for the plaintiff. Miss J Pinto instructed by Messrs. Jal N. Karbhari & Co. for the defendant |
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