Lily Tse Lai Yin and Others v. The Incorporated Owners of Albert House and Others
Read the full judgment text of HCPI 828/1997 on BabelCite. This High Court CFI judgment was delivered on 17 September 2001.
1. The 1st plaintiff, now aged 44, claims damages for the injuries that she suffered on 1 August 1994 when the canopy at Albert House in Aberdeen collapsed, she being one of the victims of that canopy collapse. Liability in this case has already been determined in favour of all the plaintiffs against all the defendants. This is now the assessment of damages in relation to the 1st plaintiff.
Cites 2 cases
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HCPI000828D/1997 HCPI 828/1997 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PERSONAL INJURIES LIST NO.828 OF 1997 ----------------------
----------------------- Coram: Hon Suffiad J in Court Dates of Hearing: 23-25 and 27 April, 2-4, 7-8, 10-11, 14 and 16 May 2001 Date of Assessment: 17 September 2001 ------------------------------------------------------------------------ ASSESSMENT OF DAMAGES OF THE 1ST PLAINTIFF ------------------------------------------------------------------------ 1.The 1st plaintiff, now aged 44, claims damages for the injuries that she suffered on 1 August 1994 when the canopy at Albert House in Aberdeen collapsed, she being one of the victims of that canopy collapse. Liability in this case has already been determined in favour of all the plaintiffs against all the defendants. This is now the assessment of damages in relation to the 1st plaintiff. 2.At the hearing of the assessment, only the 2nd and 5th defendants took part appearing by counsel. The other defendants did not appear either in person or by counsel. 3.At the time of the accident, the 1st plaintiff, then aged 37, was walking along the pavement underneath the canopy together with her three-year-old son. When she heard the initial sound of the collapse above her, she tried to run with her son to avoid the collapse. When she could not, she instinctively pushed her son towards the U2 shop, which is a shop situated on the ground floor of Albert House underneath the collapsed canopy. 4.The 1st plaintiff succeeded in pushing her son into the U2 shop. However she herself was not so fortunate as she was pinned down by a large slap of concrete which fell on her back. After the slab of concrete fell on her, the 1st plaintiff had the upper part of her body lying face down just inside the entrance of the U2 shop with her lower body lying on the steps of the shop just at its entrance and the slab of concrete lying on top of her back. 5.Subsequently, the 1st plaintiff was extricated from the debris and placed inside the middle of the U2 shop before she was taken to hospital by ambulance. Before arrival at the hospital, the 1st plaintiff wandered in and out of consciousness feeling pain in her spine. INJURIES IN TREATMENT 6.As a result of the accident, the 1st plaintiff suffered very serious injuries to her head and lower back. She had lost consciousness at the time of the accident but when admitted to the Accident and Emergency Department of the Queen Mary Hospital, she was noted to be conscious and alert. 7.After admission into Queen Mary Hospital, she was diagnosed to have suffered a fractured dislocation of the thoracolumbar junction of her spine or T12/L1 leading to complete paraplegia. She was also found to have complete sensory loss of both lower limbs up to the L1 to L2 dermatone. 8.On 5 August 1994, the 1st plaintiff had an operation to decompress and stabilise her spine by screw fixation. After the operation, the 1st plaintiff remained completely paraplegic. She was given bed mobilisation and wheelchair training. She was transferred to the MacLehose Medical Rehabilitation Center ("MMRC") from 22 August until her discharge in late January 1995. She attended regular follow-up sessions at the Duchess of Kent Children's Hospital from 8 October 1995 to 5 August 1998. 9.For four months after discharge from hospital, a bonesetter came to the 1st plaintiff's home to massage her. She further attended the Jockey Club Clinic at Sai Ying Pun for urological and gastro enterological re-examinations. There were two to three episodes of urinary infections in 1995 and 1996 which required the 1st plaintiff to be readmitted to the Queen Mary Hospital for treatment. 10.From January 1996 until July 1997 and also from October 1998 up to present, the 1st plaintiff had received occupational therapy from a Mr Wong Pui Kau of the Spastics Association of Hong Kong. The 1st plaintiff was admitted to the MMRC as a day patient from July to December 1997 and was trained in the use of a walking frame called a Reciprocal Gait Orthosis ("RGO"). 11.This injury has left her paraplegic from the waist down. It is common ground that the 1st plaintiff has been wheelchair-bound since the accident and will be wheelchair-bound for the rest of her life. She has also suffered psychiatric and psychological disabilities as a result of the accident. ORTHOPAEDIC AND NEUROLOGICAL ASSESSMENT 12.The 1st plaintiff no longer has any sensation over her lower body and cannot move her lower body. She suffered some pressure sores on her hip in about December 1994 when she was at the MMRC. This has healed. She now has itchy red patches around her knees from time to time. 13.She has developed back pain which radiates down to her legs. She feels numbness in her thighs. She wakes up in the middle of the night three to four times. She also has frequent headaches sometimes associated with dizziness. She takes painkillers, sometimes as often as three times a day but they do not always help. She gets tired easily. 14.Her condition has deteriorated over the years. She gets colds and coughs more easily. She seeks medical treatment from a general practitioner on average four to five times a year at a cost of $200 per visit. UROLOGICAL ASSESSMENT 15.The 1st plaintiff no longer has voluntary control over urination and bowel movements. She uses suppositories as she has developed haemorrhoids which continue to be a problem. She also has to wear a napkin. 16.The 1st plaintiff had two to three episodes of urinary infections in 1995 and 1996 and was admitted to Queen Mary Hospital for treatment. She had a further one to two infections in about 1998. Now she self-catheterizes five to six times a day, each time taking an hour or so. As there is only one toilet in the flat where she lives with her family, this becomes an inconvenience to the rest of the family. 17.In the last one or two years, her urinary problem has deteriorated. The 1st plaintiff has also noticed that she leaks urine more frequently between catheterisations without being aware of it. If this happens in the middle of the night, she will wet the bed and disturb her husband. She therefore has to change diapers more frequently. 18.Quite apart from the embarrassment to the 1st plaintiff, she now has to carry all the paraphernalia for changing the catheter whenever she goes out. This includes diapers, catheters, jelly, cotton wool, saline solution, tissue, hand mirror, dirty paper bag, baby powder etc. 19.The 1st plaintiff has also been diagnosed as having a small bladder syndrome. She is willing to undergo the surgery recommended by Dr George Koo to rectify the small bladder syndrome. Moreover, when she has the sense of fullness of the bladder indicating that she needs to urinate but cannot, it causes her to have spasms of both legs. To stop the spasms, she needs to massage her legs by placing one leg on the knee of the other. If she is in public, this causes further embarrassment. PSYCHIATRIC ASSESSMENT 20.The 1st plaintiff was examined by Dr Singer, a psychiatrist, in August 1998, March 2000 and January 2001. In his first report, Dr Singer stated that the 1st plaintiff's previous personality was that of a cheerful, energetic, hard-working, sociable woman who enjoyed travel, badminton, cycling and socialising. After the accident, she experienced great fear that she would not be able to carry on her role as mother and wife, that she would become useless and unable to do anything at home. She became very depressed, cried daily and had thoughts of suicide. Her depressive mood had persisted though it has improved slightly in the last two years which she attributes to participation in social activities for the disabled. 21.Dr Singer found the 1st plaintiff to be depressed, tearful times, however she puts on a brave front as shown by her attempts to be polite and cheerful. His opinion was that she suffered a psychiatric disability in the form of a Depressive Disorder which was moderate in degree and was a psychological reaction to the physical, psychological and social aftermath of the accident. The 1st plaintiff also had mild features of Post Cocussional Syndrome as shown by her dizziness, irritability and impaired concentration. The prognosis of the Depressive Disorder was not good and was likely to be persistent. She was vulnerable to episodes of severe depression if she met with setbacks. The depression could be alleviated to an extent by treatment consisting of psychotherapy and medication. He suggested intensive therapy at her home, with 50 sessions per year for the first three years. The therapy would consist of :
In addition, Dr Singer recommended counselling for the other family members including the husband and the elder daughter as well as the son who was with the 1st plaintiff at the time of the accident and who had symptoms suggestive of post-traumatic stress disorder. 22.After his examination of the 1st plaintiff in April 2000, Dr Singer concluded that her depressive mood was less severe but she also had sudden episodes of severe depression once in a few months for no apparent reasons, each episode lasting from 10 to 15 minutes. Her memory had deteriorated and she was more irritable. Her headaches and dizziness were more frequent. Her nightmares of the accident, which used to recur about once in two to three months, now occurred about once in six months. 23.Dr Singer stated that the 1st plaintiff was still suffering from Depressive Disorder which was still moderate in degree. She was also still suffering from Post Cocussional Syndrome and also from Post Traumatic Stress Disorder. His opinion, as to the prognosis for the psychiatric disabilities, was the same as the 1998 save that his prognosis for the Post Traumatic Stress Disorder which was newly diagnosed was that it was poor due to the chronicity although it might be alleviated by treatment to some extent. He made the same recommendations as to treatment save that he also recommended desensitisation procedure for fears associated with the Post Tramatic Stress Disorder. He enlarged his recommendations as to care and attention by advising that the 1st plaintiff needs a full-time enrolled nurse with psychiatric experience for a 12 hour day shift for life. 24.After examining the 1st plaintiff in January 2001, Dr Singer noted the 1st plaintiff's physical complaints, memory, concentration, irritability and headaches had all worsened. She was now awakened at nights by startled reactions and all other symptoms had persisted. Her nightmares of the accident, however, had improved. She became irritable quite easily, feeling herself to be a burden to others. Her headaches had increased with time and were sometimes so overwhelming that she needs intravenous medication. As for her sex life, Dr Singer states that it is a "sham" as it is maintained as a heroic attempt to maintain her relationship with her husband. Dr Singer further states that she shows commendable fortitude in handling her losses and her denial is one of the ways she uses to cope with her problems. She could not easily admit to her disabilities and problems, otherwise her defences would break down and she does not believe in complaining. PAIN SUFFERING AND LOSS OF AMENITIES 25.The injuries and disabilities of the 1st plaintiff as stated above has not been disputed by the defendants. It is clear from those injuries and disabilities that the 1st plaintiff will have to spend the rest of her life in a wheelchair and that her disabilities are permanent. 26.I have been referred to a number of locally decided cases in relation to awards for general damages to quadriplegia, paraplegia as well as hemiplegia. Using those cases as a general guideline and without going into any detail, it would be suffice to say that in the present case, the 1st plaintiff clearly falls into the 'Disaster' category as it is understood in the case of Lee Ting Lam. Therefore, taking into account all her injuries and disabilities including her psychiatric condition, a reasonable amount of damages under this head would be $1.8 million. That would be the award to the 1st plaintiff for her pain suffering and loss of amenities. LOSS OF SOCIETY 27.There is a claim for loss of society both as a wife and as a mother. The claim for loss of society as wife is put at $150,000 and as mother towards her children, it is put at $100,000. This claim has not been disputed by the defendants. I am satisfied that this claim is reasonable in all the circumstances of this case and will be awarded totally in the sum of $250,000. SPECIAL DAMAGES (PRE-TRIAL) 28.The following items of special damages pre-trial as well as the amount claimed for each item are not in dispute between the parties :
29.I am satisfied on the evidence before me that the amounts in respect of the four items above have been expended and are reasonable in the circumstances in this case and they will be allowed. 30.The 1st plaintiff also claims transportation costs in the total sum of $82,780.00. The defendants on the other hand are prepared to concede a sum of $70,860.00 under this head. Although the dispute between them is not great, there is nevertheless an issue here that has to be decided. 31.The difference between parties encompasses a very narrow issue relating only to the visits by the 1st plaintiff to the Duchess of Kent Children Hospital and also her visits to the Sai Ying Pun Urology Clinic for follow up. The 1st plaintiff's claim in these two respects are based on an estimated 100 return trips each to the Duchess of Kent Children Hospital as well as to the Sai Ying Pun Urology Clinic. However, the evidence in her witness statement states that the 1st plaintiff had visited the Duchess of Kent Children Hospital totally for some seven times and that her visits to the Sai Yin Pun Urology Clinic is on average once in three to four months since 1995. 32.In the light of that evidence, the amount claimed must be overstated. Accordingly, the pre-trial transportation expenses will be adjusted downwards and will be awarded in the sum of $70,860.00. 33.The 1st plaintiff further claims pre-trial loss of earnings/value of her husband. In this respect, the 1st plaintiff claims the sum of $2,265,000.00. The defendants, however, are only prepared to concede an amount of $2 million under this head. Again the difference will have to be resolved. 34.The evidence before me in relation to this claim shows that the husband of the 1st plaintiff was employed by his brother-in-law in a very successful ceramic business which was expanding at the time of the accident. As a result of the accident, the husband had no choice but to give up this work in the light of the severe injuries to the 1st plaintiff to the care of not only the 1st plaintiff but also the two children, making it impossible for him to return to this work. The salary of the husband at the time of the accident, as stated in the Employers Return to the Inland Revenue, was $9,340 per month. 35.However, there is also evidence before me from the brother-in-law that the husband of the 1st plaintiff effectively received much more than the salary of $9,340. In real terms, the total amount received by the 1st plaintiff's husband would be closer to $50,000 gross if he had continued working, as he would have been assigned to manage a new factory in China and when his bonus and double pay had also been taken into account. It is also the evidence of the brother-in-law that the replacement for the husband of the 1st plaintiff is in fact earning $48,750 per month as from 1995 onwards and that the 1st plaintiff's husband would probably have been paid more than this amount (because of his experience) had he not stopped working. 36.The evidence stated above has not been disputed or challenged by the defendants. Neither do the defendants dispute in principle that it is reasonable for the husband of the 1st plaintiff to take care of the 1st plaintiff and the children after the accident and thereby having to stop his work which he was engaged in before the accident. What is disputed by the defendants goes to the method of assessment of damages under this head. The defendants contend that the method of assessment adopted by the plaintiff, namely, by taking the actual amount of lost earnings of the husband as the basis for valuing the unpaid help undertaken by the husband is wrong. The defendants rely upon the principle enunciated in Housecroft v. Burnett [1986] 1 All ER 332 where it was held by the Court of Appeal in England that as a guideline, an award under this head should not exceed the commercial rate for the services provided to the plaintiff. 37.This, however, is not a principle but only a guideline. The decision in Housecroft was considered by Seagroatt J in the case of Ta Xuong v. Incorporated Owners of Sun Hing Building, but that guideline was not followed. In each case, the nature of the care and the nature of the employment surrendered must be looked at in all the surrounding circumstances of the case itself. 38.In the present case, viewed in the light of the 1st plaintiff's injuries and resultant disabilities, which required not just the care and services of the husband, but probably more importantly, his constant moral support, dedication and being by her side at all time, I am prepared to accept the suggestion made by the plaintiff's counsel that I should take a median loss of net earnings for the pre-trial period to assess the husband's loss of earnings for that period. In the absence of any firm figures of what the husband would have been paid had he continued in the job, I shall use the salary paid to his replacement (i.e. $48,750) and the husband's pre-accident salary of $9,340. This gives a median of $29,045 per month. For the pre-trial period, the husband's loss of earnings comes to $2,192,898 which will be the amount awarded for the husband's loss of earnings. 39.The total pre-trial losses comes to $3,033,628.25. FUTURE EXPENSES A. Aids and equipment 40.A total of 48 items of aids and equipments have been listed in the 1st plaintiff's Scott's Schedule of Damages under this head. However, five of these items have now been withdrawn by the 1st plaintiff. Most of the items are medical and have been recommended by either Mr Andrew Kwok, the rehabilitation expert, or by Mrs Shelley Chow, the occupational therapist. Having withdrawn those five items, the 1st plaintiff's total claim under this head of damage comes to $1,282,017.13. 41.The majority of the items claimed are not disputed by the defendants, neither do the defendants dispute that for many of these items a multiplier of 17 should be adopted in this case in quantifying the proper amount of the claim. 42.There are, however, two main areas of dispute by the defendants. Firstly, the defendants submit that for the hospital bed, the hoist and the transfer boards, a multiplier of 14 (and not 17) should be used on the grounds that the 1st plaintiff does not at present require these items but only when she ages and becomes less independent. 43.I accept that submission by the defendants in respect of the hospital bed and the hoist since there is clear evidence in the reports of Mr Andrew Kwok and Mrs Shelley Chow that the 1st plaintiff will not need these items just yet, not until she ages or becomes less mobile or independent. Accordingly, the claim will be reduced by $23,744 and $16,876 respectively. In so far as the transfer board is concerned, that submission is not borne out by the evidence. 44.Secondly, the defendants submit that the claim for the following items are unreasonable or unnecessary :
45.With the exception of the washing and drying machine, I do not accept the submission by the defendants that the rest of the above items are unreasonable or unnecessary. All of those items have been recommended by the experts, either Mr Andrew Kwok or Mrs Shelley Chow. In the absence of any evidence to contradict that evidence of the experts, I am inclined to accept the evidence of the two experts that these items are reasonably necessary for the 1st plaintiff's benefit. As for the washing and drying machine, I can take judicial notice of the fact that this is such a common every day necessity in almost every household that more likely than not it would be a machine to be found in the 1st plaintiff's home even had this accident not occurred to her. In such event, I shall disallow the claim for the washing and drying machine which is claimed at $23,995 in the Scott's Schedule. 46.For the above reasons, the 1st plaintiff's claim under this head totalling $1,282,017 will be reduced by an amount of $64,615, thus giving the final amount of $1,217,402 which is the amount assessed under this head of claim. B. Medical consumables and recurring expenses 47.Due to typing error in the Scott's Schedule of Damages, the claim for adult diapers (items 49) was erroneously stated to be $53,125 therein, when it should properly have been $155,125. This error has now been corrected and is not disputed by the defendants that the amount claimed should properly be $155,125. In fact, this claim for adult diapers and the correct amount is admitted by the defendants as being reasonable. 48.The rest of the items claimed, being item 49 to item 70 inclusive in the Scott's Schedule of Damages, have been accepted by the defendants as being reasonable and necessary. Most of these items are required by the 1st plaintiff due to the fact that she suffers from double incontinence. The multiplier used, in this case 17 for all the items, have also been agreed to by the defendants. 49.Taking into account the correct figure for the amount of the claim for adult diapers, the total amount under this head of claim comes to $443,397 which is the amount assessed as being reasonable and necessary under this head of claim. C. Additional household expenditure 50.The 1st plaintiff claims additional household expenses in the form of increased electricity and heating expenses as well as extra washing powder. She is sensitive to temperature by reason of her disabilities and the extra expenditure is justified because of her special needs. 51.The multiplicand of $4,800 per year for extra electricity and extra heating is supported by Mr Andrew Kwok and is agreed by the 2nd and 5th defendants. The claim for extra washing powder is also agreed by the defendants at $44 per month or $528 per year. The total annual multiplicand therefore comes to $5,328. Again, the multiplier of 17 is agreed by the defendants. 52.Accordingly, using those multiplicand and multiplier, the total amount assessed for additional household expenditure comes to $90,576. D. Extra transportation cost 53.The 1st plaintiff is wheelchair-bound for life and unable to travel out of her home unless accompanied. She cannot take public transport. Her freedom of movement is thereby restricted. Notwithstanding her limitation in movement and her disability, she is active in taking part in Chinese Opera, visiting old people's homes etc. Mr Andrew Kwok has recommended a specially adapted van such that her enjoyment of such activities by the 1st plaintiff can be improved. It would increase the quality of her life. The adaptations are made to enable easy access and egress by wheelchair. 54.In all the circumstances of this case, that recommendation is both reasonable and necessary. 55.The claim for the purchase of the special van (item 73 in Scott's Schedule) has been broken down to an annual figure of $123,500 which includes the adaptation cost. The multiplier is agreed at 17. The amount of that claim comes to $2,099,500. 56.There is also a claim for extra transportation cost which is agreed to by the defendants. This is based on an annual figure of $26,000 and a multiplier of 17. It gives an amount of $442,000 (item 75). 57.The claim in item 74 has been withdrawn by the 1st plaintiff. 58.The total amount assessed under this head comes to $2,541,500 and that will be the amount awarded. E. Future medical and care 59.A number of different items are included under this head of claim and I shall deal with each in turn.
60.Dr Singer has recommended psychotherapy and counselling including marital and sexual counselling for the first three years and thereafter maintenance treatment for life as well as counselling for the 1st plaintiff's family members. The total estimated cost of Dr Singer's recommended treatment amounts to over $2 million. 61.The 1st plaintiff is currently attending counselling sessions with Dr Katherine Kot and intends to continue with her. The cost of the sessions with Dr Kot is substantially less than what has been recommended by Dr Singer, being at $1,500 per session instead of $3,500 because the 1st plaintiff attends at Dr Kot's clinic. On that basis, the 1st plaintiff is prepared to limit her claim at 50 sessions per year for the first three years and thereafter at six sessions per year. This works out to $201,000. 62.The 1st plaintiff is further prepared to reduce her claim for hospitalization expenses from yearly to three admissions in total amounting to $115,500. 63.She is also prepared to limit her claims for family counselling for her husband and eldest daughter to six sessions per year for two years for her husband and for one year for the daughter. This works out at $27,000. 64.The above concessions by the 1st plaintiff is wholly reasonable and on that basis, the total amount for psychiatric treatment is assessed at $343,500.
65.I have already referred to the recommendations of Dr Koo above when dealing with the 1st plaintiff's urological assessment. In brief, the 1st plaintiff requires lifetime urological cover for her bladder problems. Moreover, in her present condition, she cannot be expected to stand in line with other patients to wait for such specialist treatment at the public sector when she can have treatment in the private sector as recommended by Dr Koo. 66.The claim for urological treatment and cover in the private sector is based on it, costing $13,400 per year and surgery at a lump sum of $120,000. Once more using a multiplier of 17, it is assessed at $347,800 which is the amount assessed for urological treatment/cover.
67.As recommended by Dr Yu Yuk Ling, the annual cost of neurological treatment and consultation is given at $8,750. This annual cost is agreed to by the 2nd and 5th defendants. Using a multiplier of 17, neurological treatment is assessed at $148,750.
68.Dr Arthur Chiang has recommended orthopaedic care for the 1st plaintiff's back complaint, i.e. stretching and posture exercises and the use of lumbar supports. Massaging the limbs should relieve her tennis elbow pains and should the pain become intolerable, steroid injections could be used to resolve the symptoms. The cost including steroid injections comes to $9,600. 69.This is reasonable and will be allowed.
70.Mr David Siu has recommended a course of treatment followed by life-long maintenance. With the 1st plaintiff wheelchair bound, he advises that she should receive physiotherapy at home. He recommends $30,350 for the initial treatment for three months and thereafter annual costs of $10,800. 71.Once again in her condition, this recommendation appears to be sensible and reasonable. Accordingly, I accept that recommendation and assess the cost of future physiotherapy in the amount of $220,850.
72.Mrs Shelley Chow has recommended domiciliary therapy of $1,200 per visit by occupational therapist every three to four months. On that basis, the annual cost works out to be $3,600. 73.The recommendation appears reasonable in the circumstances of this case and using the same multiplier of 17, the award assessed under this head comes to $61,200.
74.The 2nd and 5th defendants agree to the 1st plaintiff's claim for $17,000 under this head and that amount will be awarded.
75.This is recommended by Mrs Shelley Chow resulting from the 1st plaintiff's problem with her foot drop. The claim is for $53,873 which is based on an annual cost of $3,169 which includes the consultation fee of $730 per hour and the cost for the splints. 76.The recommendation and amount seems reasonable and will be assessed as recommended.
77.The 1st plaintiff claims for a full-time live in domestic helper at a cost of $90,115 per year. This claim is agreed by the 2nd and 5th defendants and works out to be $1,531,955 using once again a multiplier of 17. 78.Accordingly, the total amount assessed for Future Medical and Care comes to $2,724,928. F. Holiday and memberships 79.Mrs Shelley Chow recommended that the 1st plaintiff should be able to participate in social events or go on holidays. In so doing, the 1st plaintiff will have extra or additional expenses because of her disabilities as, for example, bringing a helper on holiday because of the condition she is in. This will reduce anxieties and fraustrations (see Cheung J in Lai Chi Pon v. Toto Steel Works Ltd No. 2 [1997] 2 HKC 741 at 755-6). It is also accepted that it would be beneficial for disabled persons if they are given allowances for socialisation activities especially with other handicapped persons. The 1st plaintiff has taken part in such activities and it is reasonable and important that she should continue in them. 80.$35,000 per year is claimed for the extra cost of holidays, $750 per year for car memberships and $6,200 per year the cost of social membership. These multiplicands and the multiplier of 17 are all agreed to by the 2nd and 5th defendants. The total amount assessed under this head comes to $713,150. G. Training needs 81.The 1st plaintiff's initial claim under this head was for the amount of $318,625, but has now agreed to come down to a total figure of $130,000 of which $100,000 is for the purchase of a computer, software and training courses, and $30,000 is to cater for her driving lessons. 82.The claim for this reduced amount of $130,000 is agreed to by the defendants and will be allowed in that sum. H. Future accommodation expenses 83.Under this head, the 1st plaintiff now asks for a total sum of $2,159,460. It is undeniable that the 1st plaintiff needs alternative accommodation and claims for alternative accommodation is a well established head of damages awarded in cases of paraplegia. In the present case, this claim is well supported by the various experts, in particular Dr Yu Yuk Ling, Dr Singer, Mrs Chow, Mr Kwok and Mr Joseph Kwan of Rehabaid, a consultant architect with specialist knowledge of the needs of the disabled. 84.Mr Ian Cullen, the chartered surveyor, has made detailed recommendations as to the suitability and costs of suitable alternative accommodation for the 1st plaintiff. 85.I accept that the correct approach to assessing damages for alternative accommodation is to take the differential in the rental between the existing accommodation and the alternative accommodations (see Leung Sai Kui v. F. Zimmern & Co., HCA No.A1151 of 1985; Li Tin Yau, HCA No.A7524 of 1985 and Chan Yuk v. Dragages [2000] 2 HKLRD 795). 86.With that approach, the parties have agreed the annual multiplicand in the amount of $153,400. Although this figure is substantially below the figure recommended by Mr Kwan and Mr Cullen, nevertheless the 1st plaintiff has accepted it as representing the differential between the premises which has been recommended to the 1st plaintiff in the estate known as South Horizons in Ap Lei Chau and those premises in which she now lives in Chi Fu Fa Yuen. This multiplicand also takes into account the rental which the 1st plaintiff could achieve for her existing premises. 87.Instead of using the multiplier of 17 as has been used for other heads of future expenses, a discounted multiplier of 14 will be adopted to take account of all the contingencies and uncertainties of life. The equation will thus give the amount of $2,147,600. To this sum will be added a lump sum of $11,700 to cater for legal costs, estate agents fees and stamp duty. The final figure assessed for this head of claim comes to $2,159,460. I. Adaptation costs 88.The cost of adaptation for the premises in South Horizons are estimated at over $330,000 by Mr Joseph Kwan, the adaptations being to cater to the special needs of the 1st plaintiff in her present condition. 89.However, despite that estimation, the 1st plaintiff are agreeable to limiting her claim under this head to the amount of $215,000 as offered by the 2nd and 5th defendants. INTERESTS 90.Interests will be awarded on general damages for pain suffering and loss of amenities as well as for loss of society and services at 2% per annum from the date of Writ. Interests on pre-trial special damages will be awarded at half judgment rate from the date of the accident. SUMMARY OF ASSESSMENT
Accordingly, the 1st plaintiff's total damages inclusive of interests is assessed at $16,784,345.25. COSTS 91.There will be a costs order nisi that the costs of the assessment in relation to the 1st plaintiff will be borne by the defendants, to be taxed on a party and party basis if not agreed with certificate for two counsel.
Representation: Mr Ozorio, SC, leading Ms Corinne Remedios, instructed by Messrs Wilkinson & Grist, for the 1st Plaintiff The 1st Defendant in person, absent Mr Chris Cheng, instructed by Messrs Lau, Chan & Ko, for the 2nd Defendant The 3rd Defendant in person, absent The 4th Defendant in person, absent Mr Chris Cheng, instructed by Messrs Chan, Evans, Chung & To, for the 5th Defendant The 6th Defendant in person, absent |
Cases cited in this judgment
Further hearings and rulings under HCPI 828/1997