YAN SHUN SIM v. KAI MUK YIM AND ANOTHER

HCPI 69/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 69 OF 2003

______________________

J U D G M E N T

______________________

1. The plaintiff's claim against the 1st defendant is for damages for personal injuries sustained by her when she was knocked down by the private car registration no. FK 1887 ("the car") driven by the 1st defendant on 26 December 2000. There was also a claim against the 2nd defendant, the owner of the car. However, the action against the 2nd defendant was discontinued with leave at the outset of the trial.

Liability

2. The plaintiff and the 1st defendant both gave evidence. On the question of liability there is not much dispute between the parties as to how the collision occurred.

3. The plaintiff gave evidence, which was not challenged, that she and her husband were walking uphill along Jat's Incline, Fei Ngo Shan, Wong Tai Sin, Kowloon in the early hours of the morning on 26 December 2000. She said that she was with her husband and a few other morning walkers going for their early morning walk. She had walked up Jat's Incline frequently for many years with her husband.

4. At about 4 a.m. she was leading the group by the left hand side of the road. Suddenly she heard loud engine noises and voices. A bright glow came rushing towards her and she was knocked down by the oncoming car which was travelling downhill along Jat's Incline. She was thrown away by the collision. Eventually she was taken to hospital and she was found to have sustained a crushing injury to her left leg with open wounds. I shall return to her injuries later. She said that at the time of the accident the road was lit by moonlight, the weather was fine and the road surface was dry.

5. It is common ground that there were no street lights at that time at Jat's Incline at the place where the accident occurred.

6. The 1st defendant gave evidence that he was driving the car downhill along Jat's Incline which was a one lane one way sloping carriageway. He was driving at a speed of 40 km per hour. There were no road lights at the time and the area was dark. He had his headlights on.

7. The 1st defendant said that he was going downhill and was approaching a left bend. Before he turned the bend he did not see anybody on the road. When he wanted to turn the bend he saw a man on his left hand side. There is no dispute that the man was the plaintiff's husband. On seeing the man there he swerved his car to the right. He also stepped on his brakes. Then he saw the plaintiff. She was on the road on his right which means that she was on the left side of the road going uphill. The 1st defendant said that he swerved because he was afraid that he might hit the man if he did not do so. However, he collided with the plaintiff and then hit a rock and came to rest on the road further downhill. The plaintiff was thrown to somewhere beyond the kerb to the other side away from the road. He called the police who arrived on the scene. The plaintiff was taken to hospital by ambulance.

8. The 1st defendant also said that it was not very bright at the time. He also said that before he reached the bend and before he saw the old man he did not see or hear anything that alerted him to the presence of pedestrians on the road.

9. It is clear from his evidence that he saw the old man first and then swerved to his right to avoid hitting him. It was then that he saw the plaintiff. He said that it was more or less one second from the time that he swerved to the right up to the time of colliding with the plaintiff. It is abundantly clear both from his evidence and the plaintiff's evidence that everything happened very quickly. There was only a second's interval from the time that he swerved to the right to the time he collided with her.

10. The 1st defendant agreed in cross-examination that the place where the collision took place on Jat's Incline was wide enough to accommodate two cars. That seems clear to me on the photographs in exhibit P2, particularly the bottom photograph.

11. Both the plaintiff and the 1st defendant were asked in evidence to mark on exhibit P2 the place where the plaintiff was before the collision. The plaintiff marked the position where she stood when she first saw the car. The 1st defendant marked the position where, according to him, she was standing when he first saw her. The plaintiff marked a position which placed her not on the road but on the other side of the kerb away from the road. The 1st defendant placed her on the road and not on the other side of the kerb.

12. It seems to me that the plaintiff was mistaken in thinking that when going uphill she was not on the road but away from the road on the other side of the kerb. What she said in evidence is inconsistent with her supplemental witness statement dated 3 November 2003. It is clear from her marking of position E on the bottom photograph of exhibit P2 that she was walking along Jat's Incline on the road and not on the other side of the kerb away from the road. Position E is where she was hit according to her supplemental witness statement. Her recollection of events on 3 November 2003 is, in my view, more reliable on this matter. I prefer her evidence given in her supplemental witness statement to her evidence given before me on this matter. Save for this one matter in the plaintiff's evidence which I did not accept, I accept the rest of the plaintiff's evidence. I find that she was a truthful and reliable witness who told me the truth about the events leading to the collision.

13. In my view, the 1st defendant was also a truthful witness who told me the truth about the events leading to the collision. The photographs produced in evidence support his version that the car did not cross over the kerb and that the car remained on the road at all times. It is highly likely that the plaintiff was hit when she was on the road and I so find. The plaintiff was, however, in my view not in the position marked by the 1st defendant in exhibit P2 when she was hit but close to the kerb in the position marked E in the lower photograph in Exhibit P2.

14. The 1st defendant was convicted of careless driving on 19 June 2001 at Kowloon City Magistracy on his own plea of guilty. The conviction is a weighty piece of evidence of itself (per Lord Denning MR in Stupple v. Royal Insurance Co. [1971] 1 QB 50 at page 72A). Lord Denning MR also said at page 72D-E :

“ Take a running-down case where a plaintiff claims damages for negligent driving by the defendant. If the defendant has not been convicted, the legal burden is on the plaintiff throughout. But if the defendant has been convicted of careless driving, the legal burden is shifted. It is on the defendant himself. At the end of the day, if the judge is left in doubt the defendant fails because the defendant has not discharged the legal burden which is upon him. The burden is, no doubt, the civil burden. He must show, on the balance of probabilities, that he was not negligent : see Public Prosecutor v. Yuvaraj [1970] 2 W.L.R. 226, 231, in the Privy Council quite recently. But he must show it nevertheless. Otherwise he loses by the very force of the conviction."

15. Mr. Wright did not seek to persuade me that the 1st defendant was not negligent. He submitted that the issue was one of contributory negligence of the plaintiff.

16. In my judgment the 1st defendant was negligent and the injuries to the plaintiff were caused as a result of this. The 1st defendant was convicted of a charge of careless driving on his own plea of guilty. He has been unable to show that he was not negligent. It seems to me that the 1st defendant was driving too fast in the circumstances coming downhill along Jat's Incline. The road was dark with no street lights and the road was, as he admitted, steep and narrow. Driving down at 40 km per hour in such circumstances was too fast in my view. When he approached the left bend he did not even slow down. He maintained the same speed. He ought to have slowed down when approaching the left bend but he failed to do so. He saw the plaintiff's husband and swerved to the right and braked but as it was only about a second before he hit the plaintiff everything must have happened very quickly. He swerved to the right and lost control of the car hitting the plaintiff. Had he come down Jat's Incline at a slower speed and stayed on the left of the road, he would not, in my view, have hit the plaintiff. The reason that he hit the plaintiff was because he swerved to the right, braked and lost control. It was because he was going too fast in the circumstances that he lost control of the car and hit the plaintiff and I so find. I find that the 1st defendant was negligent and that it was because of this that the plaintiff sustained her personal injuries.

17. The next question to consider is whether there was any contributory negligence on the part of the plaintiff.

18. Although there were a number of pleaded particulars of contributory negligence, Mr. Wright in his closing submissions focused on the question of whether or not the plaintiff was carrying a torch at the material time. It was submitted that the plaintiff was guilty of contributory negligence to the extent of 20% as she was on a pre-dawn walk without a torch to make herself visible. He also submitted that if she was carrying a torch it was not powerful enough or not held in a position where it would shine a light ahead.

19. It was by a late proposed amendment to the defence dated 11 February 2004 that the allegation was first made that she was guilty of contributory negligence by :

“ (f) Failing to wear reflective clothing or carry a flashlight".

20. As a result of the late proposed amendment the plaintiff served a 2nd supplemental witness statement dated 24 March 2004. The plaintiff gave evidence that at the material time whilst going uphill on Jat's Incline she was wearing a white windbreaker and she carried a torch. The torch was on a string which was around her neck and the torch was underneath her armpit. The torch was switched on at the time. She was cross-examined about the torch and the fact that she had not mentioned this before making her 2nd supplemental statement. However, I find that there is nothing in the criticism that no mention was made of this before. The matter was never raised as an issue until the amended defence was served, which was done without leave as leave was only obtained at the trial. I believe the plaintiff when she said that she carried a torch with her at the time and that it was switched on at the time.

21. It is for the 1st defendant to show that the plaintiff was guilty of contributory negligence as particularised. The 1st defendant did not give any evidence on whether or not the plaintiff carried a torch at the material time. Mr. Wright submitted that it ought to be inferred that the plaintiff did not have a torch with her because the 1st defendant had said in evidence that he did not see anything that alerted him to the presence of pedestrians on the road. I am unable to accept this on the evidence of the plaintiff which I accept. I believe the plaintiff. I believe the plaintiff on this issue and find that she was carrying a torch as she said and that the torch was switched on. It may well be that the 1st defendant did not pay attention to this as he did not even see the plaintiff until after he swerved to the right to avoid hitting the plaintiff's husband. If he had not driven so fast in the circumstances he would have been able to see the plaintiff in time to avoid hitting her.

22. Apart from the question of the torch, Mr. Wright did not address me on the other particulars of contributory negligence. In any event, as was submitted by Mr. Lam and which submission I accept, none of the pleaded particulars of contributory negligence have been made out.

23. It should also be borne in mind that the 1st defendant was coming down hill at a speed which was too fast in the circumstances as I have found. He saw the plaintiff's husband on his left when he wanted to turn the bend and swerved to his right. Had he not swerved to his right it is highly likely in my view that he would not have hit the plaintiff. She was at the left of the road coming uphill near the kerb at location E on the bottom photograph at exhibit P2. The road at that point was certainly wide enough to accommodate two cars. Had he not swerved to his right he would not have hit her. There can be no contributory negligence on the part of the plaintiff just because the plaintiff's husband was walking on the right side of the road going uphill. It was never suggested that this amounted to contributory negligence on the plaintiff's part.

24. In my judgment there was no contributory negligence on the plaintiff's part. The 1st defendant was negligent and is liable for the injuries caused to the plaintiff.

Quantum

The injuries

25. The plaintiff was 75 years old at the time of the accident. She is now 79 years old.

26. There is no dispute as to the injuries she sustained and the treatment she received as shown in the medical reports.

27. The plaintiff was taken to United Christian Hospital after the accident on 26 December 2000 where she was admitted. She was found to have left leg crushing injury with open wounds. An X-ray showed that there was a fracture of the left tibial plateau.

28. She had several operations at the hospital. There was a surgical debridgement and external fixation on 26 December 2000. She also underwent a screw fixation on 28 December 2000 and a skin graft on 12 January 2001.

29. She was transferred to Kowloon Hospital for rehabilitation on 3 February 2001. She was transferred back to United Christian Hospital for orthopaedic management. The external fixator was removed and she was readmitted to Kowloon Hospital on 2 April 2001. She was discharged on 16 June 2001 and followed up in the Rehab Specialist Out Patient Clinic. She spent a total of approximately six months in hospital.

30. As shown in the report of Dr. Derrick Au dated 4 February 2002, the plaintiff's left leg pain improved after removal of the external fixator and the follow-up X-ray showed good alignment. She was trained for weight bearing. The left knee was stiff initially with a range of motion at 20 degrees but with mobilization this increased to 70 degrees. Full weight bearing was started in June 2001. She was discharged on 16 June 2001 and at discharge she was walking with a frame. Quadripod walking was tried with some difficulty due to left shoulder pain. Dr. Au was of the opinion that her personal self care was independent at discharge although she needed assistance in outdoor activities.

31. On follow up she had mild to moderate left lower limb pain particularly on prolonged weight-bearing requiring regular analgesics. The X-ray of the left tibia showed good union.

32. She also had out-patient physiotherapy at Kowloon Hospital twice weekly.

33. When she was examined by Dr. Lam Kwong-chin, the orthopaedic specialist, on 2 May 2002 she complained to him that she had persistent left knee and leg pain. This was worse on prolonged sitting or standing. This affected her activities as she needed to move about after sitting for 10 to 15 minutes. She could walk with a frame for 5 to 10 minutes at home but she needed the use of a wheelchair on going out. The other complaints were not relevant to the injuries sustained as a result of the accident. At the time he examined her, Dr. Lam found that she needed assistance in getting up from the wheel chair. She could walk with a limping gait by holding onto the room furniture. She could stand on the right side single-legged but not on the left side.

34. He examined her and his findings are contained in his report dated 16 May 2002. On examining the upper limbs he found the right shoulder with diffuse tenderness and exertion of the same was affected by pain. On examination of the lower limbs he found no length discrepancy. There was, however, marked muscle wasting of the left thigh. The girth of the left thigh was 43 c.m. compared to the right thigh which was 49 c.m., showing a difference of 6 c.m. The left knee movement flexion was only 70 degrees whereas the flexion in the right knee was 130 degrees.

35. Dr. Lam's assessment was done 16 months after the injury. The plaintiff still complained to him of poor weight bearing capacity on the left lower limb. She told him that she was dependent on a walking frame at home and on a wheelchair on going out.

36. He found that she could walk with support for a few steps inside the consultation room but could not walk independently without aid. He found extensive scars and tenderness around the knee and lower leg. The left thigh muscle was grossly wasted. Both the knee and ankle joints had a limited range of motion.

37. Taking into account the pain and stiffness of both shoulders and the impairment of the lower limb he assessed that she had 39 % impairment of the whole person.

38. Dr. Lam was of the view that the left leg condition was stable and no specific treatment was required. Removal of the implants was not required. He said that there was no need for a close assistant for her personal care. However, he said that a part-time helper was required as she would need help for household jobs and the purchase of daily goods.

39. Dr. Danny Tsoi Chi-wah examined the plaintiff on 3 June 2003 and his report is dated 6 June 2003.

40. The plaintiff complained to Dr. Tsoi about pain in the left knee and calf on weight bearing. She told him that she needed a walking frame to assist walking at home and that she was unable to walk continuously for more than five minutes. She preferred a wheelchair for all outdoor ambulatory activities. She was unable to perform household work such as preparing food, cleaning and tidying room. She also complained of urinary incontinence and impaired memory but these were not related to the accident.

41. Dr. Tsoi found that she was able to self propel the wheelchair with good control. He found no abnormality over both upper limbs with good strength and full range of motion preserved. She was able to stand and limp a few steps without support. She was unable to squat down.

42. On examination of the left lower limb, he found no measurable limb length discrepancy. There was gross wasting of the left thigh muscle. The girth of the left knee was 47 c.m. compared to the right which was 51 c.m., the difference being 4 c.m. There were scars over the left lateral thigh, back of knee, along the left knee and leg as well as a skin graft scar. He found a normal alignment when examining the left knee. The flexion of the left knee was only 70 degrees whereas the flexion of the right knee was 130 degrees. There was weakness on both flexion and extension.

43. As Dr. Tsoi commented in his report, his examination was conducted one year after Dr. Lam's assessment. The plaintiff's left leg condition appeared to be better than the previous year. There was less wasting of the left thigh muscle and she could limp a few steps unaided. The shoulder tenderness and stiffness had disappeared completely.

44. Dr. Tsoi was also of the view that the left knee condition was stable and no treatment was required. He assessed her impairment of the left limb at 16% impairment of the whole person. There was no longer any impairment of the shoulder as the shoulder tenderness and stiffness had disappeared by the time of his examination.

45. Dr. Tsoi said that, based on the objective and radiological findings, he believed that the plaintiff would have no difficulty in walking with a crutch for about fifteen to twenty minutes. He was of the view that use of a wheelchair for indoor ambulation was unnecessary but that it was recommended for outdoor long distance walking. He felt that the plaintiff would have no problem taking care of herself, including changing clothes, toileting, showering and eating. She could prepare simple food. But she would not be able to perform household cleaning work and washing clothes. He was of the view that a part-time domestic helper was required.

46. The plaintiff is now 79 years old. She had no formal education. She came to Hong Kong and worked as a domestic helper. She retired when she was about 1958. Unfortunately, her husband passed away in April 2002. She has six grown up children. Before the accident she lived with her husband and her daughter. She presently lives with her daughter and an Indonesian domestic helper.

47. Before the accident she was healthy with no past history of injury or illness in the left leg and knee. She was independent and could handle all her daily housework. She enjoyed travelling and used to go for morning walks with her husband and friends. Her evidence was that after the accident she cannot take care of herself. Her daughter had to resign her job to look after her from the time she left hospital in June 2001. In August 2002 her daughter employed an Indonesian domestic helper to look after her. She said that she had to rely on the domestic helper for all her daily activities and to assist her for personal care. In this respect she disagreed with the doctors that only a part time helper was required to attend to her and the household chores.

Pain, suffering and loss of amenities

48. It was submitted by Mr. Lam that for pain, suffering and loss of amenities ("PSLA") the award should fall under the substantial injury category. He submitted that as the range was $540,000 to $660,000 (Chan Pui-ki v. Leung On and another [1996] 2 HKLR 401 at 407) the sum of $600,000 should be awarded. Mr. Wright submitted that the award should fall under the lower range of serious injury and that the award should be in the sum of $400,000.

49. The plaintiff was 75 years old when she sustained her injuries and she is now 79 years old. In view of her injuries she will not be able to enjoy the early morning walks that she used to go on frequently. It seems to me that on the medical evidence, which I accept, she does not need a wheelchair at home. However, she does need it whilst going outdoors. Based on the medical evidence, it seems to me that what the plaintiff sustained was a serious injury and that the award should be near the top of the scale for serious injury. The range in Chan Pui-ki for serious injury was $400,000 to $540,000. It seems to me that a reasonable and proper award for PSLA for the plaintiff should be $500,000 and that is the amount I award for PSLA.

50. Interest on PSLA should be awarded at 2% from service of writ on 17 Jan 2003 to trial. That is a period of 15 months. Interest on the award for PSLA should be in the sum $12,500 ($500,000 X 2% ÷ 12 X 15) and that is the amount I award for interest on PSLA.

Special damages

51. The medical expenses have been agreed at $56,980. Other miscellaneous expenses have also been agreed at $6,876 making a total of $63,856 as agreed medical and other expenses.

52. There is a claim for tonic food in the sum of $27,880. There are receipts for this expenditure. The defendant agrees the sum of $10,000 for tonic food. The tonic food consists of, inter alia, ginseng and bird's nest. I have no doubt that the tonic food was purchased for the plaintiff's benefit and that she did feel better after consuming the same during her convalescence. However, I do not think that the full amount should be recovered from the defendant. In my view, a reasonable amount which should be allowed for tonic food is the sum of $15,000 and this is the amount that I award for the same.

53. There is also a claim for loss of income by the plaintiff's daughter when she left her employment to look after the plaintiff. The evidence from the plaintiff is that her daughter left her employment to look after her. The plaintiff was hospitalized from 26 December 2000 to June 2001. There is a claim for the daughter's loss of earnings from June 2001 to Sept 2002 i.e. 16 months at $4,500 per month amounting to the sum of $72,000. The evidence as to the daughter's loss of earnings during this period is hearsay. However, I consider that sufficient weight can be given to the plaintiff's evidence which I accept.

54. Section 49 of the Evidence Ordinance Cap. 8 sets out the considerations relevant to the weighting of hearsay evidence. This provides as follows :

“ Considerations relevant to weighing of hearsay evidence

(1)	In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2)	For the purposes of subsection (1), regard may be had, in particular, to the following-

(a)	whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b)	whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
(c)	whether the evidence involves multiple hearsay;
(d)	whether any person involved had any motive to conceal or misrepresent matters;
(e)	whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f)	whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;
(g)	whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party."

55. It seems to me to have been reasonable and practicable for the plaintiff to have called her daughter. However, she did not do so. I also consider that it is possible that her daughter might have had a motive to misrepresent matters. It seems to me also that the original statement was made contemporaneously with the daughter's resignation from her job. I have taken these matters into account. It seems to me, however, that sufficient weight can be given to the plaintiff's evidence which I accept. It seems to me that the plaintiff needed to be taken care of when she was discharged from hospital. The Indonesian domestic helper only started working in August 2002. Before that time she needed someone to take care of her even if it was on a part-time basis. The daughter was earning only a modest sum of $4,500 per month at that time as was the evidence of the plaintiff which I accept. It seems to be that it was reasonable for her to resign her job so as to care for her mother before the domestic helper started work in August 2002. This is recoverable from the 1st defendant as there was a need for the care and attention to the plaintiff provided by the daughter and the plaintiff was entitled to recover the cost for such services (Donnelly v. Joyce [1974] QB 454). The cost was, in my view, fair and reasonable and was necessitated by the 1st defendant's wrongdoing.

56. Instead of the sum of $72,000 ($4,500 x 16) claimed I would allow the sum of $67,000 ($4,500 X 15) as being reasonable in my view. As the domestic helper started work in August 2002, in my view, only 15 months' loss of the daughter's earnings should be recovered as the cost of the services for the care and attention to the plaintiff provided by her daughter. The sum of $67,500 is awarded under this head.

57. There is also a claim for the expenses and salary of the Indonesian domestic helper employed from August 2002. She was paid $4,000 per month and expenses have been incurred in hiring her. There is also a claim for the agency fee was $11,250 and return air fare of $2,500 making a total of $14,000. For the 19 months period from August 2002 to trial the total claim is $90,000 ($4,000 x 19 + $14,000).

58. Mr. Wright disputed that the plaintiff was entitled to claim the expenses and salary for a full time domestic helper. He submitted that on the medical evidence she was only entitled to claim for a part-time helper. He also submitted that she only needed 1 1/2 hours of help daily.

59. The plaintiff gave evidence that she required her helper for about 7 hours every day. Other than cooking and cleaning, the helper also accompanied her both in the mornings and afternoons to the park where she spent about 1 to 2 hours each time. She needed the helper to push the wheelchair for her. The helper also massaged her left knee and leg for about 1 hour every night.

60. I believe the plaintiff as I am satisfied that she was telling the truth. However, she does not need a full time helper as is borne out by the agreed medical evidence. A part-time helper would suffice. And although she said she uses the wheelchair at home as well as outdoors, she does not need to use the wheelchair indoors. I accept that she does need to use the wheelchair for outdoors activities and for that purpose it is reasonable for her to have the assistance of a helper.

61. I am unable to accept Mr. Wright's submission that a helper for 1 1/2 hours every day would suffice. That is unreasonable in my view. I am of the view that it would be reasonable for her to have the assistance of a helper for about 4 to 5 hours every day. It is certainly reasonable for her to go out in the mornings and afternoons and for this purpose she would need the assistance of a helper. The helper would also need to do the housework and purchase her groceries and do the daily shopping for her. She would also need the helper to massage her knee and leg each night. In my view it would be reasonable to estimate that she required and would continue to require about 4 to 5 hours assistance each day. It seems to me that in the circumstances, 4 1/2 hours each day is a reasonable period of time for a helper to assist the plaintiff each day.

62. Was it then reasonable to hire a full time domestic helper at $4,000 per month? In my view it was. The figures show that it was much more economical to hire the Indonesian domestic helper than to employ a part time local domestic helper. The unchallenged evidence was that it would cost $48 per hour for employing a local domestic helper. For 4 1/2 hours each day that would come to $216. For a month that would come to $6,480 ($216 X 30). Looking at it from that point of view, it was, in my view, entirely reasonable to hire a full time Indonesian domestic helper. That being so, it was also reasonable to incur the expenses of $14,000 for the agency fee and the airfare.

63. Notwithstanding the fact that the plaintiff said in evidence that her children paid for the helper and the related expenses, she is, in my view, entitled to recover the same from the 1st defendant. I would allow the sum of $90,000 as claimed under this head.

64. There is also a claim for care by family members since August 2002 for the period of time the domestic helper is on holiday on Sundays, statutory holidays and on leave. As was submitted by Mr. Lam, in a year there are 52 Sundays, 11 statutory holidays and about 10 days annual leave totaling 73 days, on average 6 days a month. This was not disputed. For the 19 months' period from August 2002 to trial this comes to 114 days. For each day of 4 1/2 hours' cost of employing a helper at $48 per hour, this comes to $216 per day or $24,624 for the 114 days. I do not think that it is reasonable to award any sum for this head. There was no reliable evidence as to which of the plaintiff's children cared for her the time that the domestic helper was on leave nor did the plaintiff give any evidence of what occurred when the helper was on holiday. In view of the paucity of evidence on this head, I do not think that it would be reasonable to award any sum under this head.

65. The total special damages I award are, therefore, $236,356 ($67,500 + $90,000 + $63,856 + $15,000). I also award interest on this sum from date of accident in December 2000 to judgment. The interest rate is agreed at half the average judgment rate of 9.59% from December 2000 to judgment. Half that rate would be 4.795% p.a. Interest on special damages is awarded at $37,770 ($236,356 x 4.795% ÷ 12 x 40 months).

Future care and attention

66. The plaintiff is now 79 years old. Mr. Lam referred me to the Hong Kong Life Tables published by the Census and Statistics which shows that for a female who was 79 years old the average expected life was 9.8 years. He, therefore, submitted that 10 years was the expected life expectancy of the plaintiff and that a multiplier of 8 should be adopted.

67. Mr. Wright referred to the document headed "Vital Events" published by the Census and Statistics Department and submitted that this showed that the expectation of life of a female in 2002 was 84.5 years. I do not think that this reference is of assistance as the document refers to expectation of life for females born in 2002. The plaintiff was 77 years old in 2002 and 79 years old now. The Hong Kong Life Tables referred by Mr. Lam seems to me to be the relevant and more reliable statistic for a female already aged 79 years in mid 2001. There is no reason why it should be any different today. I accept Mr. Lam's submission that approximately 10 years was the expected life expectancy of the plaintiff. However, instead of adopting a multiplier of 8 I think that it would be reasonable to adopt a multiplier of 7.

68. The future cost for employing a domestic helper to look after the plaintiff is $336,000 ($4,000 x 12 x 7).

69. There is also a claim for future recurring expenses for a semi-electric wheelchair and rechargeable batteries. The evidence shows that the wheelchair costs $25,000 and the rechargeable batteries cost $2,400 for a set. In her supplemental statement she said that each set of batteries was $24,000 and that each set was to be replaced every two years. In Mr. Lam's submissions he put the cost of the batteries at $2,400 instead of $24,000. It seems to me that the sum of $24,000 for the rechargeable batteries seems excessive and must be a mistake. It is more likely to be $2,400 as set out in Mr. Lam's submissions. The semi-electric wheelchair's life span was around 5 years. It is reasonable in my view for the plaintiff to be provided with a semi-electric wheelchair. In her advancing years this will certainly be a much more comfortable mode of conveyance when she goes outdoors to the park twice a day. I would allow the claim for 2 semi-electric wheelchairs and 4 sets of batteries over the future years. The amount awarded under this head is $59,600 ($25,000 x 2 + $2,400 x 4).

70. The total award for future care and attention is $395,600 ($336,000 + $59,600).

Summary

71. The total damages awarded to the plaintiff are as follows :

	$
PSLA	500,000
Interest on PSLA	12,500
Special Damages	236,356
Interest on Special Damages	37,770
Future care and attention	395,600
Total	$1,182,226

72. I give judgment to the plaintiff against the 1st defendant for damages in the said sum of $1,182,226.

73. I also make an order nisi that the 1st defendant should pay the plaintiff her costs of the action such costs to be taxed if not agreed.