Yan Chui Sim v. Paul Y. Itc General Contractors Ltd and Others

HCPI000244/2003

HCPI 244/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.244 OF 2003

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Coram: Hon Suffiad J in Court

Dates of Hearing: 12 - 14 May 2004

Date of Judgment: 1 September 2004

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J U D G M E N T

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1.The plaintiff brings this action against the defendants for damages in respect of personal injuries suffered by her as a result of a traffic accident which occurred on 3 July 2000 when she was knocked down by a car driven and owned by the 3rd defendant (Reg. No.JL 8869) inside the Carpark of Wo Ming Court in Ngan O Road, Tseung Kwan O, Sai Kung, New Territories ("the Carpark").

2.At the time the plaintiff was a construction worker employed by the 1st and/or 2nd defendant. The 1st and 2nd defendants were engaged in repair and maintenance works at the Carpark, in particular the mending of cracks to various parts of the Carpark.

3.For those repair and maintenance works, the 1st and 2nd defendants have converted an electric meter room on the 1st floor of the Carpark into a storage room for tools and equipment. The accident happened just outside this electric meter room.

4.I have been greatly assisted by two sets of photographs agreed into evidence. The first set, taken by police shortly after the accident, show at various angles where the 3rd defendant's car stopped outside this electric meter room after the accident. The second set, taken by the plaintiff's solicitors much later, show the meter room and the surrounding vicinity and also the ramp from which the 3rd defendant's car approached the spot where the accident happened.

5.From these photographs, the vicinity where this accident happened, can be briefly described as follows. There is an upslope ramp which leads to the 1st floor of the Carpark. This upslope ramp has a continuous left turn as one is going up to the 1st floor of the Carpark. As it reaches the 1st floor of the Carpark, there is a left turn which is almost a 90-degree left turn. The electric meter room is situated to the left side of a driver immediately upon his making this 90-degree left turn as he reaches the 1st floor of the Carpark. The door to the electric meter room faces not towards the side of the ramp but the side of the Carpark. What this translates to is that this 90-degree left turn just as one reaches the 1st floor of the Carpark forms a blind corner to a driver driving up to the 1st floor of the Carpark as much as it forms a blind corner for anyone positioning himself just outside the entrance to the electric meter room on the 1st floor.

6.Just outside the entrance to the electric meter room on the 1st floor of the Carpark there is a kerb which is slightly raised from the ground level of the ramp and Carpark. This raised kerb extends approximately a foot or so from the wall where the entrance to the electric meter room is. The wooden door to the electric meter room is slightly inside the wall from where the entrance is thus giving rise to a space or a recess into the wall before one reaches the wooden door to the electric meter room.

THE ACCIDENT

7.It is the plaintiff's case that on the afternoon of that day, she had finished mending some cracks with her supervisor Ah Keung at some parking spaces on the 1st floor of the Carpark. It was close to tea time of 3:15 p.m. She then packed up the tools and brought them back to the electric meter room for storage while Ah Keung went upstairs.

8.As there was still some time before tea time, she decided to add some solvent to the bottle of solvent which had almost been used up. The drum containing the solvent was placed on the raised kerb just outside the electric meter room. The drum was about two feet high. She then pumped some solvent from the drum into the bottle. She did this standing on the roadway just beyond the raised kerb in front of the electric meter room. After filling the bottle with solvent, she placed the bottle on the ground and then replaced the pump inside the electric meter room. She then took out an oil pot from the meter room to where the bottle of solvent was standing on the ground and filled up the oil pot with some of the solvent from the bottle. She then took the bottle of solvent and put it back in the meter room. At the same time she left the oil pot (now filled with solvent) standing on the ground just beyond the kerb in front of the meter room. She then went further in to the Carpark to see whether Ah Keung and the other workers had come down for tea. She did not find Ah Keung so she returned to the oil pot which was standing on the ground outside the meter room. As she was approaching the oil pot, she was able to see that there was no vehicle coming up the ramp onto the 1st floor.

9.When she reached the spot where the oil pot was, just outside the meter room, she stooped down to pick up the oil pot. Just at that time she was hit on the left side of her body by a vehicle coming up the ramp. She yelled to the driver but the vehicle kept moving forward trapping her beneath the front bumper. The left side of her body including her left thigh and abdomen came into contact with the underside of the engine and she felt her left side being burnt by the heat of the engine.

10.The vehicle stopped, the driver came down and saw her trapped underneath the front part of the vehicle. The driver then switched off his engine. The driver then summoned for help. At that time Ah Keung came down and together with the driver they managed to extricate her from under the front of the vehicle.

11.Later ambulance and police came and she was taken to the hospital.

12.No evidence was adduced by the 1st and 2nd defendants at all.

13.The 3rd defendant gave evidence as to the occurrence of the accident. At the material time he entered the Carpark on the ground floor and drove up to the 1st floor of the Carpark. A service road connects the ground floor to the 1st floor of the Carpark. That service road slope upwards and curve left. He drove at about 10 k.p.h. up the service road. When he reached the top of the service road which connects with the 1st floor of the Carpark, he felt the nearside of the front of his car struck something. He stopped the car, got out and saw the plaintiff trapped under the front of his car. Before that he did not see the plaintiff therefore he believed the plaintiff was squatting down along the driveway when his car hit her.

14.The 3rd defendant also says that the plaintiff was not wearing any reflective or high visibility vests at the time and there were no sign or notices on the driveway or ground floor warning drivers of maintenance works or that workers were working in the Carpark. Nor was any part of the service road or 1st floor (where the accident occurred) cordoned off.

15.In cross-examination, the 3rd defendant made a number of significant admissions. Firstly, he agreed that as he was going up along the service road he was not able to see clearly his front nearside when he made the 90o left turn as he reached the 1st floor of the Carpark.

16.Secondly, he agreed that whilst his speed was about 10 k.p.h. when going up the service road, but that the speed of his vehicle upon reaching the 1st floor might have been slightly faster than 10 k.p.h. and that he took no steps to slow down his vehicle when he reached the 1st floor of the Carpark, but simply turned left. In this respect he knew at all times that the Carpark had a speed limit but thought the speed limit of the Carpark to be 20 k.p.h. However when confronted with photographs which show a sign indicating the speed limit of the Carpark to be 8 k.p.h., he agreed that to be the case and also agreed that on his own evidence, he had been exceeding the speed limit when the accident happened.

17.Thirdly, he admitted that the service road was for one way traffic going up to the 1st floor of the Carpark and also admitted that he could have steered his car much more to the right side when making the left turn onto the 1st floor of the Carpark from the service road instead of keeping to the left side (thereby coming close to the kerb outside the meter room). He further admitted if he had done so, he would have had a better view of what was in front of the meter room and would have seen the plaintiff there. He also admitted that if he had kept more to the right, he would have avoided hitting the plaintiff.

18.Finally, he admitted that as a result of this accident, he had been convicted of Careless Driving in the Magistrate's Court on his own plea of guilty to that charge. He had admitted the Brief Facts of the case when he pleaded guilty.

FINDING OF FACTS

19.On the evidence as I have summarised above, it can be seen that there is almost no factual dispute in this case.

20.I found the plaintiff to be a refreshingly truthful witness in her account of how the accident happened. I have no difficulty accepting her evidence.

21.In like manner I found the 3rd defendant to be a truthful witness as well. His mistake as to the speed limit of the Carpark in my view was a genuine mistake possibly because he had never paid much attention to it even though he was a regular user of that Carpark.

22.It is therefore not surprising that there was little factual dispute in this case.

23.The one possible factual dispute on which I need to make a finding of fact arises from the suggestion made by counsel for the 3rd defendant to the plaintiff in cross-examination that the plaintiff was, at the time of the accident, carrying out maintenance and repair work in respect of cracks on the driveway just outside the meter room on the 1st floor.

24.This suggestion was supported to some extent by the photographs taken by the police which show some darkened lines on that driveway outside the meter room. However, there is no direct evidence from any quarter that those darkened lines are in fact cracks which had been repaired. In the absence of such evidence I cannot rule out those darkened lines (by simply looking at the photographs) to have come about from the solvent spilled from the oil-pot which the plaintiff was picking up when she was hit by the 3rd defendant's car.

25.There is also some support for that suggestion in the statement given by the plaintiff to the police where there is a solitary sentence at the start of the statement that the plaintiff was at the Carpark on the day of the accident repairing and maintaining the entrance to the driveway of the 1st floor Carpark. That statement was given by her to the police sometime in August when she was still in the hospital.

26.When cross-examined on this aspect, the plaintiff initially said that she did not say that to the officer. Later in her evidence she seemed to suggest that there might have been a misunderstanding by the officer of what she had said because at the time she gave the statement, she was in the hospital feeling unwell, she was afraid for herself because of her injuries and she did not realize that she needed to be so precise and careful in choosing her words when giving her statement.

27.The plaintiff was however adamant in cross-examination of one thing which is that the repair to the driveway entrance to the 1st floor of the Carpark had been done several days before the accident to her on 3 July 2000.

28.Moreover, having looked at the whole of the plaintiff's statement to the police, that one sentence to the effect that the plaintiff was on that day carrying out repairs to the cracks of the driveway entrance of the 1st floor Carpark, can only relate to the work done before the tea time at 3:15 p.m. In her police statement the plaintiff goes on to state that she then packed up the tools and returned them to the meter room. The rest of that statement does not differ in any significant way from the evidence given by her as to how this accident happened.

29.What that means is that the statement in her police statement relates to the work she was doing before she had packed up the tools because of the stoppage for the tea time at 3:15 p.m. In that sense it can only have minimal significance in this case since the accident happened after she had packed up and returned the tools to the meter room with a view to taking her tea break.

30.This can hardly assist the 3rd defendant's belief that the plaintiff was squatting down along the driveway on the 1st floor when the accident happened since he did not even see her until he got out of his car after feeling that his car had hit something. This 'belief' by the 3rd defendant is only generated because he did not see the plaintiff before the accident. There is therefore no evidence from the 3rd defendant or from anyone else to contradict the evidence of the plaintiff as to where she was and what she was doing when she was hit.

31.Should it be necessary for me to make a specific finding on this point, I am prepared to accept the evidence of the plaintiff and also her explanation as to how this sentence came to be in her police statement.

32.As for the rest of the evidence relating to the occurrence of the accident, I accept the evidence given both by the plaintiff and by the 3rd defendant, there being no differences in the versions given by them.

LIABILITY

33.I turn now to deal with the question of liability. The issue of liability relating to the 1st and 2nd defendants concerns their duty towards the plaintiff both as employer as well as their duty arising as occupiers of the Carpark. The liability in respect of the 3rd defendant relates to his driving of his car and the duty arising therefrom. I must therefore deal with the issue of liability in respect of the defendants separately. However, the 1st and 2nd defendants can be dealt with together.

(A) 1st and 2nd defendants

34.The 1st and 2nd defendants are the employers of the plaintiff as well as the occupier of the Carpark on their own admission.

35.As employers they owe a non-delegable duty to the plaintiff to provide the plaintiff with a safe place of work.

36.Whilst they may not be in breach of that duty in using the meter room as a storage place as there is nothing to suggest that the meter room was itself a dangerous place, the fact that the drum of solvent was placed on the kerb outside the meter room is a breach of that duty by the 1st and 2nd defendants.

37.The kerb outside the meter room is situated at a blind corner for cars coming up to the 1st floor of the Carpark from the service road. It must have been known to the 1st and 2nd defendants that that spot is a dangerous spot for their workers to pump or refill solvent.

38.Admittedly, there is no clear evidence from the plaintiff as to who had placed the drum of solvent there. In my view that does not matter. Even if it was another worker who did so, the 1st and 2nd defendants must be liable because the duty which they owe to the plaintiff is non-delegable. Alternatively, they must bear the responsibility of any act of their servant or agent. Furthermore, in choosing not to call any evidence in this case, it is open to me to draw the inference that it was the responsibility of the 1st and 2nd defendants or their servant or agent to place the drum of solvent at that dangerous spot of the Carpark since the 1st and 2nd defendants were the contractors responsible for the maintenance and repair works being carried out at the Carpark.

39.For these reasons, there is no difficulty for me to come to the conclusion that the 1st and 2nd defendants are liable to the plaintiff in negligence being in breach of their duty towards the plaintiff as employers.

(B) 3rd defendant

40.The 3rd defendant was convicted for careless driving as a result of this accident to the plaintiff. That conviction is admitted by him. The effect of such a conviction is to shift the onus upon the 3rd defendant to disprove negligence.

41.The 3rd defendant gave evidence. However, that evidence of his far from disproving negligence on his part has in fact confirmed negligence on his part.

42.He has admitted to driving at a speed in excess of the speed limit in the Carpark. He was unable to see what was in front of his car on the nearside when he made the left turn upon reaching the 1st floor of the Carpark, yet he took no steps to either slow down or to sound his horn. Moreover, when he could not see the nearside front of his car (where in fact the plaintiff was), he chose to make the left turn keeping close to the kerb on his left hand side instead of making use of the space on his right, which, on his own admission, if he had done so, he would have avoided hitting the plaintiff.

43.His complaints that the plaintiff was not wearing high visibility vest does not avail him in the least because in the first place he never saw the plaintiff at all. Moreover, the plaintiff's evidence that at the time of the accident, the spot where the accident took place was bright with sunlight as well as artificial light was never challenged or contradicted.

44.In the circumstances, the fact that the plaintiff was not wearing any high visibility vests is neither here nor there.

45.His complaint that there was no cone to cordon off the spot where the plaintiff was hit is again a red herring. In cross-examination, the 3rd defendant agreed that since a cone was not any higher than the plaintiff if she was squatting down, and since the defendant did not even see the plaintiff before he hit her, he would in all probabilities not have seen the cone if it had been placed where the plaintiff was at the time of the accident.

46.Finally his complaint that there was no notice or sign warning drivers of maintenance works or workers in the Carpark again cannot negative negligence on his part. Every driver is under a duty to keep a proper lookout for other road users when driving a vehicle. The 3rd defendant agreed in evidence that he was aware of the possibility of the presence of other persons in the Carpark, yet he did not even see the plaintiff before he knocked her down.

47.For the reasons given, I find that the 3rd defendant has failed to disprove negligence on his part and is therefore liable to the plaintiff for this accident.

CONTRIBUTORY NEGLIGENCE

48.The starting point in considering contributory negligence must be that the drum of solvent was placed on the kerb outside the electric meter room and it was from this drum that the defendant had to pump out the solvent for refilling. That was a situation created not by the plaintiff herself but by the 1st and 2nd defendants or their servant.

49.However that was the situation which the plaintiff found herself in. Although it was not created by her, her evidence was that she was aware of the service road leading up to the 1st floor of the Carpark which was just round the bend from the entrance to the electric meter room and that she knew that from time to time cars would come up from that service road. It must also have been known to her that it was a blind corner where cars made the left turn into the 1st floor of the Carpark from the top of the service road.

50.With that knowledge in mind, the plaintiff chose to pump the solvent from the drum into the bottle standing not on the kerb but on the roadway just beyond the kerb. When asked in evidence why she stood on the roadway to do that, her answer was that it was more convenient, the implication being that since the roadway was slightly lower than the raised kerb, she would have to bend down less when pumping the solvent from the two feet high drum.

51.It was because she had stood on the roadway just beyond the kerb to do the pumping that it follows from that she had put the bottle and then the oil-pot on the ground of the roadway. It further follows that when she was picking up the oil-pot from the roadway that she was hit by the 3rd defendant's car.

52.She was also asked in evidence whether she thought that it was dangerous for her to stand on the roadway to do the pumping when cars may be turning into the 1st floor of the Carpark from the service road at any time. Her answer to that was that since she was standing close to the kerb on the roadway she did not think there was any risk since she would expect cars to manoeuvre much more to the right side when making that left turn into the 1st floor of the Carpark.

53.Looking at the photographs showing the kerb and the entrance to the electric meter room and taking note of Exhibit P1 on which the plaintiff had marked the spot where the drum was placed, it is inescapable that there was sufficient space remaining on the kerb on which the plaintiff could have stood to do the pumping of the solvent. Had she done so, it was likely that she would have put the bottle and later the oil-pot on the kerb as well instead of on the roadway beyond the kerb. That being the case, she would have been on the kerb picking up the oil pot (and not standing on the roadway just beyond the kerb) when the 3rd defendant's vehicle rounded that left bend. Had that been the case, no matter how close to the kerb his car came, it would not have knocked down the plaintiff had she been on the kerb at that time.

54.In my view her failure to carry out all that on the kerb, instead of on the roadway suggests that the plaintiff had failed to reasonably take care of her own safety.

55.A number of reasons had been put forward by counsel for the plaintiff in an attempt to suggest various reasons why it was impracticable for the plaintiff to carry out what she said she did on the kerb rather than on the roadway itself. It ranged from saying that the space inside the entrance to the electric meter room was too cramped to suggesting that by positioning herself there she would get in the way of opening the door to the electric meter room which swings out.

56.I cannot accept any of those submissions. In my view the choice open to the plaintiff whether to carry out her work on the kerb or on the roadside is really a balancing exercise between convenience to her (by doing it on the roadside) as against not having to run the risk of exposing herself to the danger of cars rounding that blind corner too close to the kerb (by staying on the kerb).

57.It was also argued by counsel for the plaintiff that such failure on the part of the plaintiff to remain on the kerb should not be contributory negligence since there is evidence from the plaintiff, which evidence was not challenged, that she had seen other workers pumping solvent from the drum in the same way, namely by standing on the roadside just beyond the kerb and that they had not been told by the 1st or 2nd defendants that they should not be standing on the roadway.

58.In my view, the fact that other workers had failed to take sufficient regard for their own safety in the same manner as the plaintiff but was able to get away with it because they were fortunate enough not to have met with an accident, does not exonerate the plaintiff from being a part author of her own injuries by her own action or omission.

59.Nor for that matter does contributory negligence depend on any duty owed by the plaintiff. Contributory negligence arise from the fact that in all the circumstances of the case, the plaintiff has failed to reasonably to take sufficient care of her own safety thereby contributing to the accident.

60.For the reasons given, I come to the conclusion that the plaintiff was herself contributorily negligent and I assess that contributory negligence on the part of the plaintiff in the overall circumstances of this case to be 10%.

CONTRIBUTION BETWEEN THE DEFENDANTS

61.Contribution Notices having been served between the 1st and 2nd defendants on the one hand and the 3rd defendant on the other hand, I am bound to assess and apportion the amount of negligence as between them.

62.From all that has been said above, it is clear to me that the immediate and major cause of the accident was due to the manner of driving of the 3rd defendant (in particular his failure to keep a proper lookout) and he must bear the major portion of the blame.

63.Having assessed the contributory negligence of the plaintiff to be at 10%, the remaining 90% negligence due to the defendants is to be apportioned 30% to the 1st and 2nd defendants and 60% to the 3rd defendant.

64.Needless to say this apportionment is only as between the defendants themselves and will not affect the plaintiff in any way since the liability of the defendants to the plaintiff are joint and several.

65.I turn now to consider quantum.

INJURIES AND TREATMENT

66.The plaintiff was 50 years old at the time of the accident. After the accident, she was taken to and admitted into United Christian Hospital and remained hospitalized for two months until her discharge on 2 September 2000.

67.The plaintiff sustained injuries which included multiple injuries to the face, chest wall, abdomen, hip and thigh on the left side of her body, a left hip dislocation and left abdominal thigh burn wounds.

68.In hospital, she underwent operations for close reduction of the left hip dislocation on 3 July, debridement for burn wounds over the left abdomen and left thigh on 6 and 10 July and 11 August 2000 as well as skin grafting to cover the wounds on 10 July 2000.

69.The plaintiff now complains of the following disabilities :

(a) stiffness and pain of the left hip joint with two to three episodes of pain each day lasting from several minutes to half an hour, such pain being weather related rather than activity related;

(b) the scars are painful and itchy; it gives a burning sensation and is more severe during hot weather when sweating causes irritation to the scars;

(c) shortness of breath;

(d) dizziness and headache;

(e) numbness of the left hand which started about half a year after the injury;

(f) left shoulder pain since the injury, occurring some two to three times per month with each episode lasting a few days.

70.In his medical report dated 28 September 2002, Dr Au Ka Kau, after examining the plaintiff, came to the view that as a result of the accident, the plaintiff suffered from multiple hypotropic scars, dislocation of the left hip joint and a left frozen shoulder. Dr Au further opined that the plaintiff's left carpel tunnel syndrome was, however, not related to the accident in question.

71.Quite apart from her orthopaedic injuries and disabilities, the plaintiff also suffered from depression. She was seen and examined by Dr Chung See Yuen, a psychiatrist. Dr Chung came to the conclusion after examining the plaintiff that she suffered from post traumatic stress disorder as a result of the accident, being an event that involved actual or threatened death or serious injury to the plaintiff and whose response involved intense fear, helplessness or horror.

72.However, Dr Chung was also of the opinion that the mental disorders of the plaintiff are mild. Dr Chung recommended the plaintiff to continue treatment at the psychiatric clinic for a further year at the frequency of one session a month. Such treatment is available at the public sector but the cost of it at the private sector is $15,000.00 for one year.

PAIN, SUFFERING AND LOSS OF AMENITIES

73.I have been referred to a number of local awards in respect of the damages to be assessed under this head.

74.Although there is no agreement between the parties as to the award to be made under this head, there is no serious disagreement between them as to the amount suggested by counsel for the plaintiff in his opening, which is $540,000.00.

75.That figure is in line with the past awards awarded by courts in Hong Kong as can be seen from the cases cited to me by the parties in the circumstances of the present case given the injuries and disabilities of this plaintiff.

76.That figure, namely, $540,000.00 being a reasonable figure, the award under this head will be assessed as such.

LOSS OF EARNINGS (PRE-TRIAL)

77.The plaintiff was granted sick leave of some 20 months from the day of the accident on 3 July 2000 to 5 March 2002.

78.The main dispute between the parties here relates to the plaintiff's average monthly earnings at the time of the accident.

79.A List of Earnings prepared by Messrs Cheng, Yeung & Co. in ECC Case No.568 of 2002 shows the monthly earnings of the plaintiff for each month from July 1999 to June 2000. With the exception of July and August 1999 (both of which shows the plaintiff to have a monthly income of over $11,000.00) the monthly earnings of the plaintiff for all the other months on that list shows that the plaintiff's monthly earnings range between $8,529.00 and $9,868.00.

80.Counsel for the plaintiff submits that the average earnings from the entire list should be taken into account in calculating the average earnings of the plaintiff at the time of the accident.

81.However, the evidence from the plaintiff given in the witness box is that her daily wage was reduced from $340.00 per day to $310.00 per day at around September 1999.

82.On the basis of that evidence counsel for the 1st and 2nd defendants submitted that the average earnings of the plaintiff should be calculated without taking into account the plaintiff's earnings for July and August of 1999 since after her wage cut she will be only earning $310.00 per day even if there had been no accident.

83.That must be right, and on that basis the plaintiff's average earnings at the time of the accident is worked out as $9,425.00.

84.The medical opinion from all the doctors concerned is that the plaintiff should be able to return to some light sedentary work such as a cashier or car park attendant.

85.However bearing in mind that the plaintiff is already 50 years old at the time of the accident, only received primary education in China and had worked in Hong Kong after her arrival here with the 1st defendant as a lift operator and later as a miscellaneous worker, plus the fact that alternative employment of a sedentary nature may not be easy for someone with the plaintiff's background to secure at a time as the present economic climate in Hong Kong, I am prepared to allow for a further six months over and above the sick leave period granted to this plaintiff as being reasonable for her to secure and obtain alternative employment.

86.Her full loss of earnings for 26 months at the average monthly earnings of $9,425.00 comes to $245,050.00.

87.Thereafter she will suffer partial loss of earnings. Even if she were to be able to secure some form of alternative employment, it would be likely that such alternative employment would result in a reduction of her pre-accident monthly income. A reasonable reduction (and therefore loss) would likely to be in the region of about $3,000.00 per month.

88.Accordingly for the remaining 23 months of the pre-trial period, the loss comes to $69,000.00.

89.The total pre-trial loss of earnings therefore comes to $314,050.00.

90.The loss of MPF for the pre-trial period will be calculated from December 2000 when MPF became mandatory in Hong Kong. It would simply be a flat 5% of the loss of earnings calculated as from that date, 5% of ($9,425.00 x 21 months) + 5% of ($69,000.00) = $13,346.25.

FUTURE LOSS OF EARNINGS

91.The same multiplicand of $3,000.00 would be used for calculating loss of future earnings as used to calculate partial loss of pre-trial earnings.

92.The plaintiff and the 1st and 2nd defendants have agreed upon the multiplier of 6 while the 3rd defendant suggested a multiplier of 5.

93.In all the circumstances of this case and bearing in mind that the type of work done by the plaintiff before the accident was not the heavy type of manual work, but that she was a miscellaneous worker, 6 is more appropriate as a multiplier.

94.On that basis, the loss of future earnings comes to $3000.00 x 12 x 6 which gives $216,000.00.

95.The loss of MPF relating to future earnings comes to 5% of $216,000.00 which is $10,800.00.

FUTURE MEDICAL CARE

96.The plaintiff claims cost of future medical care in respect of three different areas in this case, namely, the cost of physiotherapy to treat her left shoulder stiffness in the amount of $11,000.00 as advised by Dr Au; secondly, the cost of psychiatric treatment as suggested by Dr Chung and thirdly, the cost of occupational therapy treatment in the light of possible avascular necrosis and osteoarthritis complication. Transportation costs relating to such future medical care are also claimed.

97.As to the physiotherapy treatment to her left shoulder stiffness, this is disputed altogether by the defendants on the basis that based on the opinion of Dr Patrick Wong, the orthopaedic expert instructed by the 3rd defendant, the left shoulder stiffness was not as a result of any injury from the accident, but rather was idiopathic frozen shoulder. The reason Dr Wong came to this view was because the stiffness of the left shoulder only occurred several months after the accident.

98.This opinion is disputed by Dr Au, the plaintiff's expert. Dr Au disagrees with Dr Wong labelling the left shoulder stiffness as idiopathic. If that was indeed a case of frozen shoulder, it would carry a better prognosis and also that frozen shoulder would normally resolve satisfactorily in about 18 months time. In the case of this plaintiff, she still had persistent stiffness of the left shoulder some three years after the accident. (It should be noted that in Dr Au's report dated 15 December 2003, under Part B where he comments on Dr Wong's report, in paragraph 4 there must have been a typographical error when it is stated " I agree (sic) with Dr Wong ..." on this issue. It becomes clear in the following paragraph 5 that Dr Au was disagreeing with Dr Wong and not agreeing with him as stated in paragraph 4.)

99.I have no difficulty accepting the reason and the opinion of Dr Au on this issue and I find that the left shoulder stiffness of the plaintiff to have resulted from the injury to the left side of the plaintiff's body from the accident. The reason given by Dr Wong for his opinion, namely that the stiffness of the left shoulder only occurred several months after the accident, is not a reason which appeals to me as being a good reason for that view of his.

100.Accordingly, I shall accede to the $11,000.00 cost of physiotherapy treatment for the plaintiff for the stiffness of her left shoulder as suggested by Dr Au.

101.As for the psychiatric treatment recommended by Dr Chung, the defendants are prepared to concede to four sessions (at $60.00 each) of such treatment for the one-year recommended by Dr Chung. However, that concession does not take account of the fact that Dr Chung recommended one session a month for one year. That recommendation of Dr Chung not having been challenged by any other expert evidence in this case, the award for future psychiatric treatment will be assessed at $720.00 being for 12 sessions as recommended by Dr Chung.

102.The plaintiff claims a sum of $50,000.00 "for future orthopaedic and occupational therapy treatment in the light of possible avascular necrosis and osteoarthritis complication".

103.Dr Au in his report dated 28 September 2002, stated at paragraph 7.5 as follows :

"7.5 Maximum Medical improvement & Prognosis :

7.5.1.

Hip joint dislocation is a serious injury. Avascular necrosis is a known complication. The incidence is around 16% for posterior dislocation without associated fracture. Avascular necrosis may take up to two years to become radiographically detectable. Osteoarthritis has been reported to develop in about 26% of the cases ultimately; though this may take years to appear. In those cases that were complicated by avascular necrosis, the incidence of osteoarthritis will be higher and prognosis will be worse."

Having stated those words cited above, Dr Au did not go on to recommend any treatment or therapy for the possible avascular necrosis or osteoarthritis complications. A fortiori there is nothing in his report to indicate the amount of $50,000.00 now claimed or any amount at all. I can only assume that the $50,000.00 now claimed is a figure unilaterally adopted by the plaintiff's legal advisers since no basis has been put forward as to how the $50,000.00 is arrived at.

104.On the other hand, the defendants are prepared to concede an amount of $360.00 for occupational therapy which is calculated from six sessions of occupational therapy at $60.00 per session for one year's duration.

105.In the absence of any proper basis for the claim for $50,000.00 that amount claimed will not be awarded. However, in the light of the opinion of Dr Au, which I accept, that there may be a chance that avascular necrosis and/or osteoarthritis may develop in future as being a complication of the hip dislocation, what I have to do is to assess, as best I can, the possibility of it developing and the reasonable cost for the future care of it should it develop.

106.In this respect, based on the opinion of Dr Au, I am of the view that a sum of $5,000.00 is a reasonable amount to award taking into account the percentage possibility of it developing as opined by Dr Au.

107.Totally the damages assessed under this head comes to $16,720.00.

OTHER SPECIAL DAMAGES

108.Medical expenses have been agreed by the parties at $27,189.00 and will be allowed.

109.Travelling expenses have also been agreed by the parties at $3,098.00 and will also be allowed.

110.The only item in dispute is a claim for tonic food for which the plaintiff claims $10,000.00 in the round. The defendants are prepared to concede $5,000.00 for this.

111.The evidence given by the plaintiff is that she had spent about $20,000.00 for buying isinglass, chicken, pig bones, deer ligaments, ligaments of pig feet, chicken legs and essence of chicken with cordyceps for consumption as advised by nurses. That evidence has neither been challenged nor contradicted.

112.Despite that evidence, the claim (as made in the final submission of counsel for the plaintiff) was only for $10,000.00 under this head, no doubt due to the fact that only a reasonable amount will be awarded for tonic food.

113.Considering that the accident happened some four years ago, and the plaintiff has still not fully recovered from her injuries and/or disabilities resulting therefrom, $10,000.00 over that period of time is in my view reasonable and not excessive. It translates to $2,500.00 a year and therefore about just over $200.00 per month.

114.Accordingly, I am prepared to allow the claimed amount of $10,000.00 for tonic food.

115.Totally $40,287.00 is assessed under this head of damage.

LOSS OF SOCIETY

116.$100,000.00 is claimed by the plaintiff under this head based on section 24(c)(4) of the Law Amendment and Reform (Consolidation) Ordinance.

117.The evidence relating to this head of damage is that the husband of the plaintiff is mentally handicapped. They married in 1973. Since their marriage, he has always lived in Hong Kong while the plaintiff lived in China. The plaintiff was only able to come to Hong Kong to join her husband in 1996. Before the plaintiff came to Hong Kong, the plaintiff's husband was looked after by his own mother in Hong Kong. The husband's mother passed away in 1997. Thereafter the plaintiff had to look after her husband. After the accident, the plaintiff was unable to look after her husband and as a result he had to be sent to a home for the elderly.

118.After she had come to Hong Kong, the plaintiff used to do all the housework (on top of the work from her employment by the 1st defendant), but after her injury, her sons had to take over doing the housework.

119.It is clear from this evidence that the dependents of the plaintiff, being her husband and sons, had been deprived of her gratuitous services by reason of the accident. While those gratuitous services were only rendered by her after she came to Hong Kong, it is almost beyond doubt that such services by the plaintiff would have continued but for the accident.

120.Considering that the plaintiff was already 50 when the accident happened and the sons are grown up, I am of the view that a reasonable amount to award under this head will be $50,000.00.

AIR CONDITIONING COSTS

121.$39,600.00 is claimed by the plaintiff for two air conditioners at $3,000.00 each (one for the living room and one for the plaintiff's bedroom) as well as for added electricity charges worked out at $800.00 per month for seven months of hot weather in the year and using the same multiplier of 6 as adopted for future loss of earnings.

122.The use of air conditioner was recommended by Dr Au in his report to alleviate the itchiness suffered by the plaintiff from her scars in hot weather.

123.In the light of that recommendation by Dr Au, and the fact that the amount claimed under this head is not excessive it will be allowed in total.

INTERESTS

124.Interests will be awarded at 2% p.a. on general damages for pain suffering and loss of amenities from the date of Writ to judgment and thereafter at judgment rate. Interests at 4% p.a. (being half judgment rate) for all special damages and pre-trial loss of earnings (but not loss of MPF) from the date of accident until judgment and thereafter at judgment rate.

SUMMARY OF DAMAGES

This total amount of $1,313,978.25 will be reduced by 10% to take account the plaintiff's own contributory negligence. That will give $1,182,580.50.

126.From this figure will be deducted the amount of employee's compensation already received by the plaintiff in the sum of $401,508.00 which is agreed by all parties. This gives $781,072.50.

127.Judgment will accordingly be granted in favour of the plaintiff in the sum of $781,072.50.

COSTS

128.There will be a costs order nisi that the defendants pay the plaintiff her costs of this action to be taxed on the High Court scale if not agreed.

Representation:

Mr Wong C.W. Brian, instructed by Messrs Simon Cheung & Co., for the Plaintiff

Mr Daniel K.K. Chan, instructed by Messrs Cheng, Yeung & Co., for the 1st and 2nd Defendants

Miss Julia Lau, instructed by Messrs T.S. Tong & Co., for the 3rd Defendant