Kwok Hoi Wan Irene also known as Guo Haiyun Suing By Her Husband and Next Friend Cheng Yuk Ching v. The Hospital Authority

HCPI 261/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 261 OF 2011

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BETWEEN

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J U D G M E N T

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INTRODUCTION

1.This is an assessment of damages following the entry of interlocutory judgment on liability by consent on 1 August 2011.

THE UNDISPUTED EVIDENCE

2.In December 2008, the plaintiff then aged 33 was admitted to a Zhuhai hospital when her pregnancy abruptly terminated with the intrauterine death of the foetus at 18 weeks gestation.  The doctors failed to evacuate the dead foetus but no surgery had been performed at that time.

3.On 17 December 2008, the plaintiff was taken to the Hong Kong Adventist Hospital, Tsuen Wan for further management.  She had placenta acreta and profuse bleeding after extraction of the foetus and placenta.  Despite blood transfusion, bleeding continued.

4.Resuscitation was carried out.  Difficulty encountered in cross-matching of blood resulted in periods of hypotension and severe anaemia during which the plaintiff was likely to have suffered from hypoxic brain damage.

5.Embolisation of the bleeding artery also failed to stem the bleeding and a total abdominal hysterectomy had to be performed on her.  Post-operatively, her consciousness was impaired with a low Glasgow Coma Scale score.

6.The plaintiff did not respond to verbal commands.

7.On 20 December 2008, the plaintiff was transferred to the intensive care unit of Princess Margaret Hospital (“PMH”) for further care and management.  Her neurological condition remained stable but poor with the EEG revealing hypoxic encephalopathy.

8.At the family’s request, the plaintiff was discharged on 13 January 2009 and transferred first to the Chinese Liberation Army Hospital and subsequently to Zhuhai People’s Hospital (“ZPH”) in the PRC for alternative therapy.  At the time, she was diagnosed to be in a persistent vegetative state due to severe hypoxic brain damage.

CURRENT NEUROLOGICAL SYMPTOMS AND DISABILITIES

9.From the joint neurology report dated 23 November 2011 of Dr Huang Chen Ya (“Dr Huang” for the plaintiff) and Dr Y L Yu (“Dr Yu” for the defendant), the present state of the plaintiff can be thus summarized.

10.The plaintiff has suffered severely impaired higher mental functions with no consistent response to verbal stimuli.  She does not turn her head when spoken to but responds to the sour taste of lemon by licking her lips.  She is attentive to tactile stimulus when her hair is brushed.  There is spontaneous eye opening and visual tracking of light.  She is startled by sudden loud noises but such response occurred in less than 5% of trials.

11.The plaintiff is totally uncommunicative but sometimes would utter unintelligible sounds.  She is unable to swallow and has to be fed by nasogastric tube.  When orally fed, she chokes.

12.There is no spontaneous movement in her limbs although she sometimes raises her arms when yawning.  She is bedridden and unable to sit in a wheelchair owing to poor neck and trunk control or turn in bed.  As well as being doubly incontinent, she is completely dependent as regards feeding, bathing, dressing and toileting. There was no response in eye, head or limb movement upon request.

13.Both neurologists agree that the plaintiff has suffered severe hypoxic brain damage.  They also concur that the majority of the neurological deficits that she has are likely to be permanent and that no further currently available treatment is likely to make a major difference to her neurological state.  The plaintiff has lost all capacity for work.

14.The neurologists are also in agreement that the plaintiff’s neurological status lies somewhere between the persistent vegetative state (“PVS”) and minimally conscious state (“MCS”).

15.PVS is a clinical condition of complete unawareness of the self and the environment.  Patients in a vegetative state show no evidence of sustained, reproducible, purposeful, or voluntary behavioural responses to visual, auditory, tactile, or noxious stimuli.  They are unaware and insensate and lack the cerebral cortical capacity to be conscious of pain.  Bowel and bladder incontinence and the lack of evidence of language comprehension or expression are additional features of such condition.

16.Patients with MCS show limited but definite evidence of awareness despite profound cognitive impairment.  They may exhibit one or more of the behaviours set out in the joint expert report (at p 172-173 of bundle 1).  These include simple command following, intelligible verbalization, purposeful behavior including movement or affective behaviours in contingent relation to relevant stimuli such as sustained visual fixation or tracking as response to moving stimuli.

17.MCS is distinguished from PVS by the presence of the above behaviours in a reproducible or sustained basis.

18.Dr Huang observed that the plaintiff exhibited visual fixation and tracking and some rudimentary response to gustatory and tactile stimulates.  He opines that the plaintiff is therefore at the time of examination at the lower end of MCS.

19.Dr Yu agreed that the plaintiff has consistent visual fixation but he made no mention of visual tracking.  He discerned inconsistent or questionable response to sound, taste and tactile stimulation but otherwise no other indication of awareness of the surroundings or volitional acts.  He therefore concluded that the plaintiff’s state was between PVS and MCS but much closer to the former.

20.Both neurologists agreed that recovery of consciousness from a non-traumatic PVS/MCS would be extremely rare after 3 months in both adults and children and nearly 3 years (the time of their examination) from the occurrence of the hypoxic brain damage.

21.I am disposed to accept the conclusion of Dr Huang that the plaintiff falls within the lower end of MCS.  There is evidence of visual fixation and tracking, response to pain, and rudimentary reaction to auditory, gustatory and tactile stimuli as when her hair is combed.

PAIN, SUFFERING AND LOSS OF AMENITIES

22.This is plainly a “disaster” case as envisioned by the decision in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657 as it cannot be doubted that the plaintiff will require constant care and attention for the remainder of her compromised life and is incapable of ever leading or appreciating an independent existence.  In all probability, she will remain hospitalized and properly cared for as in the past.  Her family has no intention to take her home for care.

23.In the Revised Statement of Damages (“RSD”), the PSLA claim was for $2,500,000.  In final submissions, Miss Pinto, counsel for the plaintiff has sought a higher figure of $2,750,000 (rounded down) to factor in the increase in the Consumer Price Indices (“CPI”) since the November 2006 decision of Suffiad J in Wong Kun Sang v Yiu Woon Ming & ors, HCPI 633/2004 which she urged offers the closest comparable.

24.Miss Pinto submitted that the CPI has increased from 92.7 to 115.8 or 23.1 points and accordingly enhanced the award of Suffiad J by 23%.  In so doing, she made reference to the Personal Injury Tables Hong Kong 2012, pp 71-72 and Table 5.1, Hong Kong Monthly Digest of Statistics, September 2012.

25.For completeness, Miss Pinto also put in for reference Chan Pui Ki v Leung On & Anr [1996] 2 HKC 565, Chan Yuk v Dragages et Travaux Publics (HK) & Ors [2000] 3 HKLRD 1, Lawati Bhawani Bikram v Ting Kau Contractors Joint Venture CACV 3/2002.

26.Mr Sakhrani, counsel for the defendant submitted that the plaintiff’s claim was overstated, ignoring the important distinction between damages for pain and suffering and damages for loss of amenities recognized in Lim Po Choo v Camden and Islington Area Health Authority [1980] AC 174.

27.In that case, the plaintiff had sustained extensive and irremediable brain damage which left her only intermittently, and then barely, sentient and totally dependent upon others.  Lord Scarman observed that the authorities recognized a clear distinction between damages for pain and suffering and damages for loss of amenities, noting that the “former depend upon the plaintiff’s personal awareness of pain, her capacity for suffering.  But the latter are awarded for the fact of deprivation – a substantial loss, whether the plaintiff is aware of it or not …” (p 189D).

28.In the absence of any evidence that the plaintiff has any appreciation of her predicament and surroundings and any appreciation of her pain and suffering, Mr Sakhrani contended that any award for pain and suffering must be modest in these circumstances. He very fairly conceded that the plaintiff’s loss of amenities was a considerable deprivation.

29.Mr Sakhrani submitted that Wong Kwun Sang, supra was not an appropriate comparable as the plaintiff in that case did gradually recover consciousness and the evidence showed “positive indications of some slight awareness in the plaintiff, albeit not great, of people and noises around him.  In that sense the plaintiff is not totally in a vegetative state” (at para 95 of the judgment).

30.Where this plaintiff has little or no perception of pain and suffering or any awareness or sense of permanent helplessness unlike the plaintiffs in Cham Cheung Sing v Yung Pak Wa [2007] 3 HKLRD 33 and Ta Xuong v Incorporated Owners of Sun Hing Building [1997] 4 HKC 171, Mr Sakhrani urged that an award of $1.5 million was appropriate.

31.Miss Pinto accepts that the plaintiff’s pain and suffering may be less than that of a plaintiff with full awareness of the loss of mobility and other essential functions of a normal existence but she submits that the plaintiff has been tragically left with minimal consciousness.  To that end, she contends that the loss of amenity must therefore be considerably greater.

32.The experts agree that the plaintiff’s neurological status falls between PVS and MCS with no realistic prospect of recovery or improvement given the long lapse of time since the incident.  The plaintiff has no life to speak of and nothing to look forward to, a most tragic state of affairs on any view.

33.In the circumstances of this case, the proper and fair award under this head of claim in my judgment is $2,500,000.

LOSS OF SOCIETY

34.Damages for loss of the plaintiff’s society under s 20C(1) of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 are agreed at $150,000.  An award is made accordingly.

LOSS OF EARNINGS AND MPF

35.The plaintiff was born in China where she was educated to university level.  Prior to marrying her husband (“PW1”) in April 2002, she had worked as a sales and executive manager in a trading firm earning a monthly salary of about RMB 10,000.

36.The plaintiff went to work for PW1 in 2001 after he established a chemical trading business in HK.  She was actually engaged to work at the Zhuhai City office as sales and executive manager, assisting with sales and administrative matters of the business.  According to PW1’s witness statement her monthly salary was about RMB 10,000.  The RSD adopted the same figure for the plaintiff’s salary at the time of the incident.  That assertion aside, no documentary evidence such as pay slips, staff salary record has been adduced in support of this amount of remuneration in RMB.

37.To further muddy the waters, the plaintiff’s Manulife MPF statement at Bundle 3 p 939 speaks to a monthly salary of HK$10,000.

38.Miss Pinto quite fairly admitted that there was some inconsistency on what the plaintiff was actually paid and invited the court to go by the Hong Kong tax returns.  I agree that the tax returns on which the plaintiff’s liability for tax was calculated offer the best indication of her earnings at the material time.

39.The tax return for the year ended 31 March 2007 gave an annual income of $136,000 or a monthly average of $11,333 (see Bundle 3 p 934).  For the year ended 31 March 2008, the stated annual remuneration was $126,000 or $10,500 per month (Bundle 3 p 936). The tax return for the year ended 31 March 2009 gave a total income figure of $110,000 (Bundle 3 p 938).  The tragic event unfolded in December 2008.  As it is unclear whether any salary was paid for December 2008 and beyond to the end of that tax year, adopting the last tax return may well skew the calculation of her average remuneration which appears to have fallen somewhat since the tax year ended March 2007.  I propose therefore as did Miss Pinto ignore the latest available tax return.

40.The plaintiff’s pre-trial pre-accident average monthly income may be taken to be $10,916.50, being the average of the monthly salaries for the years ended March 2007 and March 2008.

41.Miss Pinto suggested that the plaintiff’s monthly salary would likely have increased to $11,845 (a figure at odds with the RSD notional salary at trial of RMB11,699) by factoring in a 50% increment based on the CPI performance for the 5 years from 2008 to 2013.

42.As Mr Sakhrani was quick to point out, there are inherent difficulties with this approach. The CPI devised for Hong Kong has no relevance as concerns earnings across the border.  The plaintiff was employed by PW1 to work not in Hong Kong but in China.  There may well be, one believes, an equivalent mechanism for tracking and adjusting salaries in China but no evidence has been led in this regard. PW1 could well have addressed the issue of salary increment in the 5 years to 2013 in his witness statement and oral evidence.  This was not done. Furthermore, the plaintiff’s own evidence indicated that her salary fell in the year ended March 2008.

43.In these circumstances, it would be quite wrong to assume that the plaintiff’s notional salary at trial would indeed have increased in the manner and amount as Miss Pinto invited the court to accept.  I shall therefore adopt the average monthly salary figure of $10,916.50 arrived at above.

44.But for the disaster that befell the plaintiff, I accept that she after the normal delivery of her 2^nd child (had she not died) might have returned to work following a 4 month post-natal leave by 18 April 2009 as submitted by Miss Pinto.

45.Accordingly, the pre-trial loss of earnings inclusive of MPF to end November 2013 may be calculated as follows: $10,916.50 x 55.5 months x 1.05 = $636,159.

46.I so order.

FUTURE LOSS OF EARNINGS AND MPF

47.On behalf of the plaintiff, it was asserted that her income would have risen to $11,845 based on the assumption that her earnings would have increased in the 5 years to November 2013 which I did not accept for the reasons stated above.

48.It was also submitted that the plaintiff aged 37 now would but for the accident have worked until the age of 65.  Even taking a most generous view of PW1’s evidence particularly as elicited in cross-examination concerning the plaintiff’s work intentions but for the accident, it could not be said with any degree of persuasion that the plaintiff was likely to work until 65.  What is clear is that PW1 and the plaintiff did not have any specific plans for the plaintiff to stop work or work part-time with the coming of the 2^nd child.  It appears that there was no discussion about this matter at all and PW1 was simply not in a position to say one way or the other.

49.Equally patent is that prior to her mishap, the plaintiff managed to look after her young son with the help of her mother and a part-time helper whilst still working at PW1’s company.  Whether she would indeed continue to earn a living beyond the age of 50 remains uncertain.  There was simply a dearth of evidence in this connexion.

50.Miss Pinto suggested a multiplier of 20 on a discount rate of 2.5% by reference to the Personal Injury Tables Hong Kong 2013, Table 10 (Loss Of Earnings To Pension Age 65 (Females)), Table 28 and the recent decision on the appropriate discount rate of Bharwaney J in Chan Pak Ting v Chan Chi Kuen & anr HCP1 235/2011 and two other actions heard together.

51.I accept that the appropriate discount rate is 2.5% but the multiplier is unrealistically high given all the uncertainties in this case.  The multiplier urged by the defendant is equally unrealistically low.

52.I consider a multiplier of 17.55 on a discount rate of 2.5% appropriate in all the circumstances given that there is a possibility, not entirely remote, that the plaintiff might have worked till the age of 60 but for the accident.  The defendant was only prepared to accept that she might have carried on working until she turned 50.

53.Adopting the same multiplicand as for pre-trial loss of $10,916.50, I assess her future loss of earnings inclusive of MPF as follows: $10,916.50 x 17.55 x 12 months x 1.05 = $2,413,965.65.

54.Although it is well established that loss of earnings in ‘the loss years’ are to be discounted to reflect a plaintiff’s own living expenses on the authority of Pickett v British Rail Engineering Ltd [1980] AC 136 and Wong Sai Chuen (deceased) v Tam Mei Chun [1983] HKLR 331, I agree with Miss Pinto that there is no evidence to support such a reduction in this case.  PW1’s evidence was that he provided for the plaintiff’s living expenses and even regularly paid for her shopping expenses.  I also accept that there is evidence that the plaintiff has substantial savings.

55.I award $2,413,965.65 as future loss of earnings.

LOSS OF HOUSEHOLD SERVICES

56.The claim in the RSD for loss of such services both pre and post-trial is in the amount of $4,000 per month.  This multiplicand has no evidential foundation in my view.

57.The undisputed evidence is that the plaintiff prior to the incident had worked primarily from home.  The defendant accepted that she had performed most of the day-to-day housework including cooking, laundry and cleaning.  She had part-time help once a week and was assisted by her mother who helped look after her young son when she was away from home for work.

58.Miss Pinto urges in final submissions the court to accept the value of the plaintiff’s domestic services to be RMB2,500 each month for the pre and post trial periods.  This estimate is derived from the advertising data supplied by the defendant regarding the cost of household nannies in China (Bundle 3 pp 1013-1016).  Mr Sakhrani submitted that the correct average cost if applicable should be RMB2,000 and not the higher figure of RMB2,500.  I agree.

59.In Daly v General Steam Navigation Co Ltd [1981 1 WLR 120, the Court of Appeal held that where the plaintiff has lost her housekeeping capacity, the cost of home help would be a fair measure of future loss even if she did not intend to employ anyone, but that such expense are not recoverable for the pre-trial period unless actually incurred.  This approach was adopted in Wong Choi Fung v Fung Kai Public School, unrep., HCPI 534/2004.

60.PW1’s witness statement was to the effect that following the plaintiff’s incapacity he had taken up her duty to care for their son, escorting him to school, doing household work and generally taking care of the family.  It was only in chief that PW1 claimed that after the incident he had engaged a domestic helper.  He provided no evidence of when the domestic helper was engaged and at what cost and whether she was still employed.  The evidence in this regard was far from satisfactory.

61.That being so, Mr Sakhrani said the claim was unsustainable or alternatively no more than RMB1,000 per month should be allowed in computing damages under this head of claim.

62.I accept that PW1 did employ a full-time helper as he said.  Given and despite the paucity of evidence, I am prepared to adopt the figure as multiplicand suggested by the defendant for the pre-trial period.

63.Damages for pre-trial loss of household services will be calculated thus: RMB1,000 x 55.5 months x 1.2 (the RMB to HK$ exchange rate adopted in the RSD) = $66,600.

64.As for future loss, there being objective evidence that the cost of a full-time domestic is likely to be RMB2,000 per month, I shall adopt this sum as the multiplicand.

65.I consider it appropriate in the circumstances to employ the same multiplier of 17.55 to calculate post-trial loss under this head of claim.

66.Damages will therefore be: RMB2,000 x 17.55 x 12 x 1.2 = $505,440.

MISCELLANEOUS EXPENSES

Pre and post trial cost of hospitalization

67.The cost of hospitalization at PMH, Guangzhou Military Hospital (“GMH”) and ZPH to 30 November 2011 are agreed respectively at $2,450, RMB427,426 and RMB329,929.  It amounted to $911,276 at the exchange rate previously adopted.  This amount will be allowed.

68.Latterly agreed were also the medical expenses incurred at ZPH for the period 1 December 2011 to 31 January 2013 at RMB92,873 or $111,447.60.  This sum is also recoverable.

69.PW1 originally claimed that he would be required to spend about RMB16,000 monthly as medical expenses after 19 December 2011.  On the evidence, there was no basis to support such a high claim and it was not surprising that the figure was adopted in the RSD.

70.The evidence disclosed that the hospital charges had gradually dropped over time.  In January 2013 the monthly charges were only RMB4,541.18.  PW1 accepted that for the 7 months between 1 April 2012 and 31 October 2012, the average hospital charges were RMB4,988 each month.  There was no evidence that such charges would revert to the pre-April 2012 levels.

71.I agree with Mr Sakhrani that the average monthly figure from 1 April 2012 to 31 October 2012 is the most up-to date available average, the reliability of which is confirmed by the January 2013 expenses of RMB4,541.18.

72.I also agree that RMB4,541.18 is the appropriate multiplicand for determining the cost of hospitalization for the period from 1 February 2013 to 30 November 2013.  The charges for the 10 month period to trial are assessed in the sum of (RMB4,541.18 x 10 x 1.2) $54,494.16.

73.The pre-trial hospital expenses therefore amount to $1,077,217.76.  This amount shall be paid by the defendant.

Post-trial hospital expenses

74.The evidence disclosed that the plaintiff was cared for in a VIP private room for a period. She remained so hospitalized until 21 March 2012 when she was moved to a shared ward where the care regime continued as before.  The move did not compromise the level and standard of care and attention she continued to receive.  PW1 has expressed a desire for the plaintiff to be relocated to a single room ostensibly on the advice of the neurologists.

75.The neurologists in their further report of 6 August 2013 stated that they could not recall the details of any conversation they might have had with PW1 in this regard.  It is clear from the latest report that a private room is necessary only if the plaintiff’s medical condition so warrants.

76.There is therefore no evidence that the plaintiff should be returned to a single room at the hospital.

77.I consider that the appropriate multiplicand for determining future hospital expenses should be RMB4,541.18 per month.  What then is the appropriate multiplier for assessing these and other future loss?

78.This will entail an analysis of the plaintiff’s life expectancy.

79.In assessing the plaintiff’s life expectancy with its impact on the multiplier, one needs to revisit the joint neurological report.

80.Both Dr Huang and Dr Yu are in agreement that the life expectancy of patients in a state of PVS and MCS will be compromised. As to the extent of the reduction in life expectancy of the plaintiff, Dr Huang opined that “she would survive to 56.5 years.  Thus, we can expect her LE to be between 10.5-20.5 years.  Taking a midpoint would mean that she can be expected to have a LE of 15.5 years, i.e. survival to 51.5 years.

81.Dr Yu offering a different view and approach stated “Taking into account Dr Huang’s LE estimate, being 10.5 years for the lower end (as for PVS) and 20.5 years at the higher end (as for MCS), and the fact that her neurological status is much closer to PVS than MCS, I would add 1 to 2 years to the LE for PVS.  In other words, it is estimated that she would survive to the age of 47.5 to 48.5 years.”

82.Having previously accepted Dr Huang’s opinion that the plaintiff’s neurological status fell within the lower end of MCS, I am disposed to adopt his approach and evidence regarding the plaintiff’s survival expectancy.

83.With likely survival to 51.5 years and the age of 37 at trial, Dr Huang expected the plaintiff to realistically survive a further 14.5 years.  As Miss Pinto submitted using the Personal Injury Tables Hong Kong 2013, p. 57 and adopting a discount rate of 2.5%, the appropriate multiplier of 12 would indeed be apt.

84.Accordingly, future hospital expenses would therefore be RMB4,541.18 x 12 x 12 yrs x 1.2 = $784,715.90.  This amount is to be paid by the defendant.

Medication

85.The plaintiff has made a substantial claim for Salt Injections, a western medicine from Argentina that the treating doctors administered to her at GMH and ZPH.

86.The cost of such treatment between 30 January 2009 and 30 November 2011 came to RMB272,728. Between 1 December 2011 and 30 November 2012, a further charge of RMB84,050 was paid, giving a monthly average cost of RMB7,000.  The plaintiff seeks a further sum of RMB84,000 being RMB7,000 pm from the previous average for the period from 1 December 2012 to trial.  The sum claimed for post-trial medication was RMB1,008,000.

87.The entire claim for such medication has been strenuously opposed by the defendant in my view, for entirely good reason.

88.Clinical trials have never been conducted in China or abroad to indicate that the salt injections would be efficacious for person in PVS/MCS.

89.In his supplemental report of February 2012, Dr Yu commented that clinical trials of the drug for spinal cord trauma showed that its efficacy remained unproven. However they established that some clinical benefit was observed in patients with Parkinson’s disease.  More specifically, he noted “search of the medical literature at Medline has not yielded any reference to the use of (this medication) in the persistent vegetative state or minimally conscious state due to hypoxic brain damage or other neurological disorders.”  He continued “so far the use of this drug in the persistent vegetative state or minimally conscious state has not met this requirement.  I am therefore of the opinion that there is no evidence that (this drug) confers any therapeutic effect on Madam Kwok’s persistent vegetative state or minimally conscious state resulted from hypoxic brain damage”.

90.Dr Huang was of the same opinion but he went further noting “in conclusion, there is no evidence that (the drug) would be beneficial to Madam Kwok, and there is a small chance that it may provoke antiganglioside antibody causing further damage to her nervous system.  In any case, apart from the study in Parkinson’s disease reported by Schneider et al, GMI is not usually given for years” (words in parentheses mine).

91.In light of the medical evidence and the absence of any evidence why the Salt Injections were prescribed in the first place and then continued for so long after the neurologists’ view became known, I find that the claim for both the past and prospective costs of this drug should be disallowed.  The expenses were incurred neither reasonably nor as a matter of necessity.  The attempt to draw a parallel with traditional Chinese medicine to sustain a conventional award also fails in my view.

Physical therapy

92.The plaintiff’s need for physical therapy is not disputed.  At the time of her examination by the experts, she was receiving physiotherapy an hour a day.  The neurologists considered such treatment should continue.

93.The cost of RMB68,400 between 22 March 2010 and 16 December 2011 is agreed.  Such further expenses were incurred thereafter to 30 November 2012 in the amount of RMB46,000.  From 1 December 2012 to trial, there was an additional sum of RMB54,000.  The further expenditure has been agreed subject to discovery.

94.The total cost to trial amounted to RMB168,400 or $202,080 following conversion at the rate of 1:1.2.

95.I am prepared to allow this pre-trial claim in full.

Prospective cost of physical therapy

96.There is evidence that the monthly cost for such therapy has been RMB4,500 since June 2012.  Taking this reasonable figure as the multiplicand, future costs will be assessed as follows: RMB4,500 x 12 x 12 years x 1.2 = $777,600.

97.The plaintiff is entitled to an award in this quantum.

Meals and dietary supplements

98.For the pre-trial period, the claim is for RMB154,913 of which RMB94,100 is agreed.  Mr Sakhrani rightly contended that the plaintiff is only entitled to additional sums beyond what she would have spent in any event.

99.The average cost of meals and supplements was about RMB87 a day between 1 January 2012 and trial.  I am prepared to allow no more than RMB40 per day for supplement from 1 January 2012 to trial or RMB 27,960.

100.The pre-trial claim under this head therefore amounts to RMB122,060 or $146,472.

101.As for the post-trial period, the award will be calculated as follows: RMB40 x 365 days x 12 x 1.2 = $210,240.

Aids and equipment

102.Pre-trial costs have been agreed at $28,290.

103.As for the future, the plaintiff claims a need to replace and repair the wheelchair, cushion, commode chair, air pressure pump mattress and other aids and equipment periodically.  This may well be true.  The estimated costs of replacement and repair were said to be about RMB10,000 per year.

104.As Mr Sakhrani submitted, there was indeed no evidence on cost beyond the initial expenses of RMB23,575.  The annual claim for the future seems speculative.  The defendant agreed that RMB500 per month or RMB6,000 p.a. for replacement and repair is a realistic projection.  I agree.

105.The post-trial claim therefore amounts to $86,400 (being RMB500 x 12 x 12 x 1.2).

Additional personal care products

106.The plaintiff has claimed a monthly sum of RMB1,600 to trial and beyond for personal care products which are said to be necessary for the plaintiff’s care given her condition.  It transpired from PW1’s evidence that some of the items purchased (for which there was inadequate documentation) related to common toiletries that the plaintiff would in any event have needed and used, such as toilet rolls, tissues both wet and dry, body wash, hand wash, etc.

107.Being doubly incontinent, the consumption of toilet rolls and tissues, body wash and powder, alcohol, cotton buds, and mouth wash would undoubtedly have increased.

108.The defendant submitted that RMB500 per month would be sufficient.  I consider that RMB850 would be more realistic and reasonable in light of the plaintiff’s needs.

109.Accordingly, the pre-trial costs of these additional care products should be RMB850 x 59.5 months x 1.2 = $60,690.

110.Post-trial, the claim will be quantified as RMB850 x 12 x 12 x 1.2 = $146,880.

Travelling expenses

111.4 items of travelling expenses are agreed at $30,736.  At issue is the cost of travel for PW1 and the plaintiff’s parents to SPH from 22 September 2009 to trial and post-trial.

112.For the pre-trial period under scrutiny, the plaintiff has claimed RMB3,000 per month as the cost of her family’s daily travel to visit her.  As was pointed out, PW1 was unable to provide any reasonable breakdown other than that he would drive to visit the plaintiff whereas his parents-in-law often took taxis to and from the hospital.  The evidence was entirely unsatisfactory.

113.I agree with Mr Sakhrani that RMB700 per month would be a reasonable allowance in the circumstances.

114.For the period under dispute, I will allow $40,530 (being RMB700 x 48.25 months x 1.2).

115.Pre-trial travelling costs therefore amount to $71,266 ($30,736 + $40,530).

116.As for the costs of travel beyond 30 November 2013, a sum of $120,960 (i.e. RMB700 pm x 12 x 12 x 1.2) will be allowed.

Additional Accommodation expenses

117.These have been agreed at $60,240.

Tonic food

118.PW1 admitted that although $50,000 was claimed, there were only receipts for about $1,600.  He said he had failed to retain all the receipts.  The sum claimed is within reasonable bounds and will be allowed in full.

Care provided by PW1 and parents

119.The plaintiff’s claim is cast as follows.

120.For the period from 19 December 2008 to 13 January 2009, a little under a month, a sum of $7,500 was sought.  This figure was admittedly plucked directly from Chan Yuk, supra.  For the remaining period to trial, a monthly figure of RMB2,000 was admittedly plucked from thin air but said to be reasonable.

121.There was evidence that the plaintiff had only 1 carer at GMH with PW1 and the father providing additional care for 24 hours a day.  I accept that they assisted in turning the plaintiff in bed and massaging and bathing her.  But there was also evidence that two full-time carers were engaged to provide 24 hour nursing care since 3 January 2009.

122.In those circumstances, I agree with Mr Sakhrani that such care should be valued at $5,000 when the plaintiff was at PMH and thereafter to trial in the monthly sum of $1,000.

123.The loss under this head therefore amounts to [$5,000 + ($1,000 x 58.5 months)] or $63,500. To that will be added $2,265, the agreed amount for nursing escort service from Hong Kong to Guangzhou and $1,680, the agreed cost of a carer during hyperbaric therapy.  The total loss is accordingly $67,445.

Care hired for daily nursing service

124.Daily nursing care from 3 January 2009 to 31 December 2011 is agreed at $313,782.  Nursing care thereafter to 31 January 2013 has also been agreed at $161,280.  There was no consensus to 30 November 2013, a period of 10 months.

125.Between 1 January 2012 and 30 November 2013, a total sum of RMB240,400 was originally sought. When the plaintiff was at GMH one nursing assistant was engaged.  Thereafter, two nursing helpers were employed at a total cost (inclusive of annual bonus) of RMB10,400 a month.

126.There were no contemporaneous receipts.  Most receipts were signed but there was no proof of actual payment.  The carers engaged were modestly educated and had only undergone a short-term care training course.  In fact one of them was previously a canteen worker.

127.Mr Sakhrani relied on the figures at Bundle 3 pp 1017-1019 to support his contention that better qualified carers could be had from RMB1,600 to 3,000 per month.  The average he said would be about RMB2,300 per month.  I agree.

128.For the 10 months to 30 November 2013, I am prepared to allow for two nursing carers at the cost of RMB2,300 pm each.  The additional cost will therefore be $55,200.

129.The total award to trial is $530,262 (being $313,782 + $161,280 + $55,200).

130.For the post-trial period, I assess damages as follows: RMB2,300 x 2 x 12 x 12 x 1.2. This produces a figure of $794,880.

LOSS OF PROFIT

131.This claim is brought ostensibly to compensate PW1 for loss of turnover as his trading business was said to have been adversely affected by his attendance on the plaintiff and their young son.

132.Quite aside from the admitted difficulty of quantifying the loss on the available evidence, the claim is also misconceived in law and not sustainable in my view: see Kirkham v Boughey [1958] 2 QB 338 and Ward v Newalls Installations [198] PIQR Q41.

133.Having looked at the financial documents relating to PW1’s business, I agree with Mr Sakhrani that the supposed loss of $500,000 has not been made out.

134.This head of claim is wholly dismissed.

CONCLUSION

135.There shall be judgment in the sum of $11,487,803.31 for the plaintiff against the defendant with interest at 2% p.a. on the damages for PSLA and loss of society from the date of the service of the writ to judgment and at half judgment rate on special damages from the date of the accident to judgment.

136.Additionally, the plaintiff is also entitled to the costs of the assessment including any costs reserved in respect thereof, taxed if not agreed with certificate for counsel. The order for costs is nisi in the first instance with liberty to apply.

Miss Josephine Pinto, instructed by Lau & Chan, for the plaintiff

Mr Ashok Sakhrani, instructed by Kennedys, for the defendant