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. This is the assessment of damages in respect of the 6th plaintiff in the Aberdeen canopy collapse at Albert House 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.
Cites 4 cases
|
HCPI000828I/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 6TH PLAINTIFF ------------------------------------------------------------------------ 1.This is the assessment of damages in respect of the 6th plaintiff in the Aberdeen canopy collapse at Albert House 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 6th plaintiff was at the time of this accident, a baby girl two and a half months old, and at the time of the trial, seven. At the time of the accident, she was strapped across the chest of her mother, the 3rd plaintiff in this case, being carried by her in that manner and was also together with her elder sister, the 9th plaintiff in this case. All three of them were leaving the New Best Restaurant when the concrete canopy collapsed onto them without any warning. They were buried under the rubble with the mother pinned down lying over the 6th plaintiff and covering the baby's head with her right hand. INJURIES AND TREATMENT 3.By the time the 6th plaintiff was pulled out of the debris by rescuers, she had turned a dusky colour and needed resuscitation. She was massaged by the ambulance crew even when in the ambulance on her way to the hospital and given oxygen. She was taken first to the Accident and Emergency Department of the Queen Mary Hospital and then admitted to the Intensive Care Ward. The hospital reports record the following injuries :-
4.The doctors diagnosed the 6th plaintiff as displaying symptoms compatible with acute suffocation with cerebral irritation. She was given anti-epileptic prophylactics until 8 August 1994 and was discharged from hospital on 11 August 1994, 10 days after the accident. 5.The 6th plaintiff attended for follow up treatment on 23 August 1994 when she was three months old. She could hold her head up momentarily but was late for her "rolling over" development milestone. PAEDIATRIC ASSESSMENT 6.Dr Lillian Ko, consultant paediatrician, examined the 6th plaintiff on various occasions. In her first report dated 14 July 1995, Dr Ko concluded that the 6th plaintiff, then 14 months old, had suffered traumatic cyanosis from acute suffocation. This resulted in hypoxic brain irritation, external hydrocephalus and anaemia but appeared to have resulted in no discernible neurological sequelae to her normal development. Dr Ko recommended close monitoring and formal assessment of intellectual function at age three. 7.In her report dated 7 February 1998 Dr Ko advised that the performance of the 6th plaintiff was normal but annual follow ups were necessary. In her third report dated 30 April 2000 Dr Ko advised that the 6th plaintiff had suffered visual dysfunction in that she had inadequate bi-nocular co-operation, excessive esophoria and convergence and accommodation problem. The 6th plaintiff had a high average IQ of 110 but uneven scores. She was timid, passive but also had a sticky personality with problems in temper control. Her emotional growth was affected by the Post Traumatic Stress Disorder (PTSD) suffered by her mother and older sister and the family was overprotective of her cognitive defect. 8.In a letter dated 22 April 2001 Dr Ko advises that based on her pre-accident IQ the 6th plaintiff had a more than 50% chance of completing Form 5, passing Form 5, being accepted into Form 6, passing Form 6, Form 7 as well as her Advanced Level Examinations, attending a tertiary institution or university and obtaining a degree. However Dr Ko advises that as a result of the accident the 6th plaintiff's poor memory and visual function and poor temper control are all such that she will probably not be able to complete Form 5. VISION ASSESSMENT 9.Dr Ko Sai Cheong, a behavioural optometrist, states in his report dated 1 May 2000 that the 6th plaintiff has a visual dysfunction arising from disruption to her visual development caused by the accident. A major accident causing acute suffocation, hypoxia brain damage and external hydrocephalus would all affect visual development. Vision is a function of the brain and the visual cortex directs both eyes to cooperate and work as a team collecting information and then sending it to the thinking part of the brain for interpretation and understanding. 10.Dr Ko found that the 6th plaintiff had inadequate binocular cooperation i.e. her eyes do not work efficiently as a team. She also had a tendency to over-cross her eyes and had poor accommodation function, accommodative infelicity and insufficiency. He recommended vision therapy for the dysfunction in his report dated 18 May 2000. The therapy recommended was for Visual Perceptual Motor Integration Therapy and would include therapy, monitoring and optometric assessments costing $79,700. PSYCHOLOGICAL ASSESSMENT 11.Because of her problems controlling her temper, Dr Lillian Ko referred the 6th plaintiff to a clinical psychologist, Mrs Hannah Chung who examined the 6th plaintiff on 16 March 2000 and 27 February 2001. In her first report Mrs Chung states that although the 6th plaintiff had a high average IQ, the widespread interest scores indicated that the 6th plaintiff could be very superior in one aspect of her intellectual functioning and yet below average in other respects. She was below average in general knowledge, arithmetic and logical reasoning. The uneven profile could be due to her young age and her emotional growth and development could have been negatived by the family problem. 12.In subsequent reports Mrs Chung states that given the 6th plaintiff's overall IQ of 110, her general memory function was significantly lower than that which could properly be expected for a child of her age and cognitive level and abilities. The Children Memory Scale (CMS) test carried out on the 6th plaintiff also revealed generalised memory impairment 13.Moreover, the 6th plaintiff has an unexpected low ability to process, organise, hold, sort and retrieve verbal material. In short, she has learning difficulties but superior attention and concentration. Her concentration and processing speeds are in fact described as excellent. 14.Mrs Chung concludes that the most likely cause of the 6th plaintiff's memory deficits is the hypoxic brain damage she had suffered as a result of being buried in the canopy collapse. Mrs Chung opines that but for the accident, the 6th plaintiff had more than a 50% chance of completing Form 7, passing her A-levels and obtaining a degree after university education. However, taking into account her permanent disabilities (i.e. low average memory and frontal lobe abnormalities) she now has less than a 50% chance of reaching Form 6 or going to university. The employment or careers open to her now are low level sales and clerical such as store attendant or receptionist whereas but for the accident she could have had jobs that required above average education such as nursing, managerial or administrative work. PET SCAN 15.A PET Scan was performed on the 6th plaintiff on 7 February 2001. Mr David Yeung, the Consultant in Nuclear Medicine, advises that "there is mild asymmetrical loss of metabolism of the left superior frontal gyrus ... and left middle gyrus ... than that of the right side. Although the change is within normal functional variation, an associated decrease of metabolism of the contralateral cerebellum diaschisis, and the asymmetric difference is genuine .... which would correlate with her less adapt left brain logical function as found in her psychological testing.". 16.Mr Yeung further states that "there is a slight decrease in right mesiotemporal hippocampal metabolism, which may be associated with some subtle memory dysfunction. The hippocampus is one of the area of the brain most vulnerable to anoxia, stress and hypoglycaemic injury.". NEUROLOGICAL ASSESSMENT 17.Dr Huang Chen Ya, consultant neurologist, carried out a neurological examination of the 6th plaintiff on 5 January 2001 and called for detailed memory tests to detect hippocampal damage. 18.As a result the CMS test was administered by Mrs Hannah Chung revealing deficit in general memory function. The CMS confirmed hippocampal damage. 19.Dr Huang states that the PET scan results are consistent with the 6th plaintiff having suffered brain damage from hypoxia during the accident with resultant memory impairment. In his report of 19 January 2001, Dr Huang advises that the 6th plaintiff's visual dysfunction was a likely result of the hypoxic episode suffered in the accident. He supported the need for therapy for the visual dysfunction. 20.Dr Huang predicts that the 6th plaintiff's school work will deteriorate as and when more memory work was required of her and she will have greater difficulty in coping as she progresses through school. Dr Huang recommends Specific Alternative Learning Strategy Training so that the education and future employment difficulties of the 6th plaintiff might be reduced. 21.Both Mrs Chung and Dr Ko have also recommended Alternative Training Strategies for the 6th plaintiff. PAIN SUFFERING AND LOSS OF AMENITIES 22.The opinions of the medical and non medical experts referred to above have not been challenged by the 2nd and 5th defendants. I accept the opinions as express and stated above. I take the view that it would not be in the interests of any concerned parties that the matter should be delayed further for a final assessment but that I should pronounce a final assessment on the available evidence before me at this stage. 23.The injuries and disabilities to the 6th plaintiff are somewhat unique in its own context and I appreciate that there are no direct authorities which may lend ready assistance to quantifying an award under this head. Nevertheless the following local awards have been referred to me :-
Using the above awards as no more than a guide, and taking into account all the medical evidence in the present case, I am of the view that the injury suffered by the 6th plaintiff would properly fall into the upper end of the Serious Injury category as it is understood in Lee Ting Lam's case. In all the circumstances, an award of $600,000 would be reasonable compensation under this head of damage. SPECIAL DAMAGES 24.The 6th plaintiff claims medical expenses in the amount of $32,900 and the cost of travelling expenses to and from the medical consultations in the sum of $2,065. These amounts have not been disputed by the 2nd and 5th defendants. The medical expenses are supported by receipts and are reasonable considering the injuries suffered by the 6th plaintiff. Both these amounts will be allowed in full. 25.There is also a claim for the cost of tonic food in the sum of $6,375. This amount was spent for the purchase of birds nest, cod liver pills, chicken broth and Chinese medicine for the 6th plaintiff. Although not supported by documentary receipts, the amount appears reasonable bearing in mind that the accident happened six years ago. This amount will be allowed in full. 26.The 6th plaintiff also claims $200 for damaged clothing. This amount has not been disputed and will be allowed. 27.There is also a claim for loss of earnings in respect of the father of the 6th plaintiff. The evidence shows that he took five months off from his work as a fisherman to take care of his family consisting of his wife (the 3rd plaintiff herein) and his two daughters being the 6th and the 9th plaintiffs herein. That claim, however, has been included and dealt with under the assessment in respect of the 3rd plaintiff. It will therefore not be allowed under this assessment to avoid there being a duplicity of claim. 28.The total amount of special damages therefore comes to $41,540. FUTURE LOSSES A. Future loss of Earnings/Earnings Capacity 29.Firstly there is a claim for future loss of earnings. The 6th plaintiff is at present only seven years old. It will be a long time before she is even of age to be in gainful employment. Obviously there is no clear indication at present as to what job the 6th plaintiff will eventually be engaged in let alone the salary she will be earning although she says she would like to be either a teacher or a nurse. There are therefore obvious difficulties in assessing future loss of earnings. One way of overcoming such difficulties is to award a lump sum payment for loss of future earnings, however, I have been referred to a number of authorities by counsel for the 6th plaintiff and having considered these authorities I am of the view that the multiplier/multiplicand approach is the correct approach to be adopted. 30.The submission by counsel for the 6th plaintiff runs along similar line as those proffered for the 4th plaintiff. Briefly that is as follows. There is the undisputed advice of the clinical psychologist, Mrs Hannah Chung, that the 6th plaintiff, being in the top 85 percentile before the accident, had more than 50% chance of obtaining a degree after completing tertiary or university education, but as a result of the accident, the 6th plaintiff has now less than a 50% chance of passing the From 5 government examinations and would have no chance of obtaining a tertiary degree. Mrs Chung further advises that the 6th plaintiff may try jobs in sales, in the service industry or unskilled jobs that do not require writing skills. 31.The multiplicand therefore should be the differential between the average career income that the university graduate could expect to receive and that of a person with only Form 3 or Form 5 qualifications could earn. 32.A great amount of evidence in the form of statistics has been put before me to show that the average income of a degree holder in the Civil Service to be in the region of $47,500 which is the average worked out from these statistics. The same statistics also show that the salary for those grades in the Civil Service upon completion of Form 5 generally range from $9,180 (MPS-2) to $22,075 (MPS-17) with some notable exceptions which can be ignored for present purposes. 33.The 6th plaintiff further suggested an alternative approach which is to calculate the loss chance of the 6th plaintiff to have qualified as a professional by reference to the differential between the relevant starting salaries in the Civil Service as recently adjusted. From those statistics the differential has been worked out to be about $20,000 34.Insofar as the multiplier is concerned, taking into account the 4th plaintiff is now seven years old, it has been suggested that a multiplier of 10 (rather than the conventional maximum multiplier) would appropriately cater to the fact that it would be many more years before the 6th plaintiff will commence her working life and would also take into account the discount for accelerated payment. It was further suggested that a further discount of 30% would not be unreasonable to reflect the uncertainties which may arise between now and the time when the 6th plaintiff begins her working life. Using that formula, based on the alternative approach, counsel for the 6th plaintiff calculates the loss of earnings capacity to be $1,680,000. A further sum of $84,000 which is 5% of the total loss of earnings capacity is to reflect loss of Mandatory Provident Fund. The total amount this comes to is $1,764,000. 35.The 2nd and 5th defendants, whilst disputing the initial approach adopted by the 6th plaintiff in assessing loss of earnings capacity, nevertheless concede that a sum of $1,760,000 would be reasonable to reflect the loss of earnings capacity and the loss of Mandatory Provident Fund in respect of the 6th plaintiff. 36.In all the circumstances of this case, in particular the concession made by the 2nd and the 5th defendants, I am prepared to adopt the alternative approach as suggested by the 6th plaintiff and to assess the loss of earnings capacity as well as the loss of Mandatory Provident Fund in the sum of $1,764,000. B. Future Vision Training 37.Dr Ko Sai Cheong has advised that the 6th plaintiff suffers from accommodative infelicity and insufficiency which means that her eyes do not work efficiently as a team. He has recommended a vision training programme including a personalised course visual perceptual, motor integration estimated to cost $79,700. Neither this recommendation of Dr Ko nor the amount of the estimated costs have been disputed or challenged by the defendants. I accept that the recommended programme would likely contribute towards the recovery of the 6th plaintiff's visual dysfunction and would assist in improving the learning ability. In the circumstances, the estimated amount not being unreasonable, will be recoverable by the 6th plaintiff in full. C. Alternative Learning Strategy Training 38.The 6th plaintiff further claims and amount of $402,200 as a reasonable compensation for Alternative Learning Strategy Training which is advised by both Mrs Chung, the clinical psychologist, as well as Dr Lillian Ko, the consultant paediatrician. 39.Mrs Chung advises that the 6th plaintiff needs learning remediation and training. In her recommendation Mrs Chung provides for 12 years of training which would take the 6th plaintiff to the age of 19. The total amount pursuant to Mrs Chung's recommendation is between $182,400 and $364,800 and that this training is to be provided by the Potential Development Association. 40.Dr Ko, after confirming the brain damage to the 6th plaintiff, advises that she requires Alternative Training Strategy for the difficulties associated with the brain damage. The cost of such a programme as recommended by Dr Ko cost between $720,000 and $1,440,000. Dr Ko's recommendation is that this training can be obtained through the Educational Psychologist and the Hong Kong Child Development Centre. 41.The main difference in price range appears to be that pursuant to Mrs Chung's recommendation such training would be provided by an occupational therapist whereas on the recommendation of Dr Ko that training would be provided by an educational psychologist. 42.Noting the difference in price range between the recommendations from Mrs Chung and from Dr Ko, the 6th plaintiff claims only for the amount of $402,200 which is based on discounted version of the lower figure supplied by Dr Ko rather than those quoted by Mrs Chung. This takes into account not only accelerated payment but also the fact that the 6th plaintiff will probably require less sessions as she gets older. 43.The 2nd and 5th defendants have indicated that they accept the amount of $402,200 as being reasonable under this head of damage. Under those circumstances the sum of $402,200 will be awarded under this head. D. Private Tutor 44.The 6th plaintiff also claims for future cost of a private tutor. In the light of her resultant disabilities which has greatly affected her schoolwork this would not be unreasonable. Indeed the defendants have accepted that it is reasonable and has conceded a sum of $48,000 which is based on five years of private tutoring at $800 per month. This appears reasonable and will be assessed at $48,000. INTERESTS 45.Interest would be awarded in general damages for pain suffering and loss of amenities at the rate of 2% per annum from the date of Writ. Interest on all special damages pre trial will be awarded and half judgment rate from the date of the accident. SUMMARY OF ASSESSMENT
The 6th plaintiff's damages is accordingly assessed at $3,000,887. 46.There will be a cost order nisi that the defendants do bear the costs of this assessment to be taxed on common fund basis if not agreed with certificate for two counsel. The 6th 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 6th 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