Tsang Kwong v. Wing Hing Air Condition Engineering Ltd

HCPI 729/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 729 OF 2007

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BETWEEN

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Before : Hon Bharwaney J in Chambers (Open to Public)

Date of Hearing : 3 December 2010

Date of Decision : 3 December 2010

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D E C I S I O N

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1.This is an application before me to adduce additional expert evidence from Mrs Shelley Chow on the appropriateness of obtaining a specially adapted vehicle for the plaintiff’s use and also whether it is beneficial for the plaintiff to have a terraced house at Fairview Park.

2.In relation to the first part of the application, as I have already indicated in the course of the submissions, it is a matter for the trial judge to determine whether it is fair and reasonable to award the expenses of a specially adapted vehicle.  The opinion of Mrs Shelley Chow will be of no assistance to the court whatsoever in this regard. 

3.Obviously, occupational therapists give expert opinions on areas which are within their expertise; for example, an injured person, by reason of his difficulties, may require specially adapted utensils for him to achieve the fullness of the activities of daily life.  He might require specially adapted spoons, plates, cooking/eating utensils and the like, and those are areas which are within the expertise of an occupational therapist. 

4.But in terms of providing a specially adapted vehicle for a disabled person, that is entirely a matter for the trial judge to decide, having regard to the socio-economic background concerned, having regard to the past life and history of the injured person, having regard to his future plan for himself, and whether, taking all those factors into account, it is reasonable for a specially adapted vehicle to be provided. 

5.For these reasons, I refuse the application in that regard. 

6.The second part of the application relates to a further expert report from Mrs Shelley Chow on whether or not it is reasonable for the plaintiff to be provided with damages to cover the rental expenses of  a terraced house in Fairview Park and whether it would be of benefit to him to have a terraced house with an open garden. 

7.Mrs Shelley Chow in her report has already set out the square footage of suitable alternative accommodation, and she says that the plaintiff would need at least 600 square feet usable area should he and his wife decide to share a bedroom, and that he would need maybe as much as 650 square feet usable area should Mrs Tsang prefer to have her own bedroom. 

8.It has been the practice for some time for parties concerned with such claims to obtain evidence of the rental cost of premises.  Much of that evidence is available on the internet and posted by reputable estate agents, and although they tend to show the area in gross square feet as opposed to usable area, I think the general consensus seems to be that one has to take off about 20 to 25 per cent off the gross to make the conversion from gross to usable area, and in fact much of that evidence has been submitted to me in the defendant’s skeleton submissions, where the prices of different premises have been set out. 

9.The plaintiff could easily obtain similar evidence in respect of the rental of an appropriate unit in Fairview Garden and put that evidence before the trial judge for him to decide whether or not it is fair and reasonable to allow the additional rental difference of a terraced house. 

10.This application reminds me of a recent case where the trial judge in England awarded the cost of a swimming pool for the disabled person, and that award was overturned on appeal as being extravagant. It is a matter for the trial judge again to consider in the context of the social and economic conditions and the past history of the plaintiff, and what the doctors recommend for him, and to decide whether or not such an award would be fair and reasonable. 

11.Again, this is not a matter in which the court would be in any way assisted by the personal opinion of the occupational therapist.  Certainly the occupational therapist can give evidence on special adaptations that are needed in suitable alternative accommodation because of the particular needs and because of the particular impairments and disabilities of a particular injured person, but that is not the sort of evidence that is being sought, and for these reasons I also refuse that application. 

Ms Teresa Leung, instructed by Messrs ONC Lawyers, for the Plaintiff

Mr Benny Wong, of Messrs Lau, Chan, Ko, for the Defendant