LAI PUI LING suing by her brother and next friend LAI HIN HO v. HO CHI KEUNG AND ANOTHER

HCPI 464/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 464 OF 2014

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J U D G M E N T

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INTRODUCTION

1.  This is an action for damages for personal injuries suffered by the plaintiff while she was wakeboarding in the waters off Sai Kung on 14 July 2010.  The action has been brought by the plaintiff, Ms Lai Pui Ling, suing by her next friend and brother Mr Lai Hin Ho (“Mr Lai”), against two defendants.  The 1^st defendant was the registered owner of the open cruiser that was towing the plaintiff and the 2^nd defendant its coxswain on the day of the accident. 

2.  A notable feature of this case is that there was no live evidence given at trial by any person present at the scene of the accident. 

3.  Two witnesses were called on behalf of the plaintiff, namely Mr Lai and their mother, Madam Lo Wai King, neither of whom was with the plaintiff in Sai Kung on the date of the accident.  The former boyfriend of the plaintiff, Mr Ho Yat Chi (“Mr Ho”), was there. His statement dated 8 January 2013 had been filed.  The bundles also contained the transcript of an “interview” conducted by Mr Lai with Mr Ho on 12 February 2011, but Mr Ho was not called to testify at trial.  Nor did the plaintiff herself give evidence.

4.  The defendants were both unrepresented, and apparently uninsured.  Interlocutory judgment for damages to be assessed was entered against the 1^st defendant on 3 October 2013 in default of notice of intention to defend.  He had not filed any witness statement and although he attended the trial he took a minimal part in it.  In any event it does not appear that he was present at the scene on the day of the accident.

5.  The 2^nd defendant filed a defence but failed to file any witness statement despite an unless order made in July 2014.  The result was that he was taken to have chosen not to call any witness, including himself, to give evidence at trial.

THE FACTS

6.  The relevant facts, as I find them on the available evidence, are as follows.  The plaintiff was born in 1983.  She completed her secondary education in 2000, obtained a diploma in secretarial work in 2001 and had been working in the logistics industry since.  In 2010 she was a customer service clerk in a logistics firm.  She began wakeboarding in around 2008, learning from friends.  She had not received any formal instruction in the sport or obtained any kind of certificate of her skill.  She had wakeboarded on a few occasions before, though it is unclear exactly how many times she had done it.  More probably than not, she knew the basic skills but was not very experienced or proficient in wakeboarding.

7.  Mr Ho was about 34 years old and the plaintiff’s boyfriend in 2010.  He had completed secondary education and was working as an aircraft repair technician.  He himself started wakeboarding in 2009.  He knew that the plaintiff had not had any formal training in wakeboarding.  About a week before the accident, Mr Ho telephoned an “Uncle Ngau”, a relative of a colleague of his, who ran a fish farm in Sai Kung, to arrange for a motorboat and coxswain (“船家”) for the day.  On 14 July 2010, the plaintiff, Mr Ho and three colleagues of his went to Sai Kung.  From Sai Kung Pier the 2^nd defendant drove them on the boat to the fish raft which was located in Kai Lung Wan, Sai Kung.  After changing, at about 11am, they collected the wakeboards from the fish raft and boarded the boat for wakeboarding.  They told the 2^nd defendant they were not too proficient in wakeboarding. 

8.  Mr Ho understood the 2^nd defendant to be a relative or friend of Uncle Ngau.  The wakeboarders had agreed to contribute $400 each for the day.  The total sum of $2,000 was paid to the 2^nd defendant at the end of the day.  The plaintiff asserted that the 2^nd defendant was the employee, agent or servant of the 1^st defendant but is not clear what their actual relationship was and whether and, if so, how they apportioned the money. 

9.  It was a sunny day, not particularly windy.  The sea was not rough.  The morning was uneventful.  Between about 1pm and 2:30pm, the party including the 2^nd defendant had lunch together on the fish raft.  They had bread and beer which they had brought with them.  In his interview, Mr Ho stated that the plaintiff had drunk about 2 cans of beer during lunch.  This is consistent with the history given to the accident and emergency department of the hospital upon admission of the plaintiff following the accident.  I accept that evidence.  According to Mr Ho’s statement, the 2^nd defendant drank 4 to 5 cans of beer during lunch.  I shall discuss this evidence below.

10.  After lunch, the five wakeboarders and the 2^nd defendant went back to the boat.  The passengers including the plaintiff, but not the 2^nd defendant, continued to drink a little beer and water while on the boat.  They took turns to wakeboard, each time for about 5 to 10 minutes.  There were life jackets on the boat, worn only by the person wakeboarding, but not helmets.  The passengers on the boat would keep a look-out on the one wakeboarding and the 2^nd defendant would also look out in the rear facing mirror.  They would give the wakeboarder suggestions on movements. 

11.  After wakeboarding once in the afternoon, the plaintiff said she was tired and had a slight headache, but she recovered after resting on the boat for 10 minutes or so.  At some time after 3pm, the plaintiff wakeboarded a second time in the afternoon.  After a short while, as she was being towed on the wakeboard, she fell forward on to the sea and cried for help.  By the time she was pulled up to the boat, she was becoming unconscious.  She was swiftly taken ashore and then to a hospital.

12.  The plaintiff was subsequently found to have suffered acute subdural haemorrhage over the left cerebral hemisphere.  She was hospitalised for 9 months and had sustained what appears to be permanent impairment.  Her injuries are set out in greater detail below.  Suffice it to mention at this stage that a neurologist has assessed her to have suffered a 39% impairment of the whole person.

THE PARTIES’ CASES

13.  The plaintiff sues the 2^nd defendant principally in negligence.  In the statement of claim a raft of particulars of negligence on the part of the 2^nd defendant were pleaded but those that were seriously relied upon by the plaintiff at trial are as follows:

(1)   driving the boat too fast and at a speed that was unsafe in the circumstances;

(2)   failing to provide the plaintiff with a safety helmet;

(3)   failing to have an observer on the boat to keep proper surveillance of the participants;

(4)   driving the boat whilst his ability to do so was impaired by the consumption of alcohol;

(5)   failing to advise the plaintiff not to consume any alcoholic drinks;

(6)   failing to prevent the plaintiff from wakeboarding after consuming alcohol;

(7)   failing to provide a safe system and environment to the participants.

14.  The plaintiff also relies on the maxim res ipsa loquitur insofar as necessary.

15.  In the 2^nd defendant’s defence, a number of matters were raised including the following:

(1)   He was driving the boat at a normal or appropriate speed.

(2)   He was not affected by alcohol.

(3)   He did tell the plaintiff not to consume an excessive amount of alcohol, but she did not listen to him.

(4)   The water sports safety code issued by the Government did not require wakeboarders to wear safety helmets.

(5)   The plaintiff’s friends acted as observers and kept a look-out on the plaintiff while she was wakeboarding.

(6)   All water sports have inherent risks, and no one can ensure that a participant will never be injured.

16.  I shall deal with the allegations of negligence in turn below.

ALLEGATIONS OF NEGLIGENCE

Speed of the boat

17.  In the interview Mr Ho said that he did not know how fast the boat was going at the time of the accident, but that it was slower than when a man was wakeboarding.  In his statement Mr Ho did not mention anything about the speed of the boat.  There was no suggestion by Mr Ho anywhere that the boat was being driven too fast or in any unusual manner at the time of the accident.

18.  Mr Hung Chou Io, Director of Training & Development of the Hong Kong Water Ski Association, gave evidence on behalf of the plaintiff as an expert.  He stated that the maximum safe speed for beginners in wakeboarding is 16 mph or 25.92 km/h.  I accept this opinion.  Mr Hung then went on to say he believed that at the time of the accident the boat exceeded that speed.  This part of his opinion evidence was wholly unsatisfactory.

19.  In the written report, Mr Hung said Mr Ho had mentioned to him that the plaintiff had a headache before the accident.  Mr Hung opined that the plaintiff had a headache “because the boat was travelling too fast”.  He stated: “If the boat was travelling at a normal speed or speed suitable for beginners, she should not have headache.”  I do not think it safe to rely on this evidence.

(1)   Mr Hung has no relevant expertise to opine on why the plaintiff had a headache.  His evidence in this respect does not meet the first criterion for admission of opinion evidence, namely, that the matter must be one “on which he is qualified to give expert evidence”: s 58(1) of the Evidence Ordinance (Cap 8).

(2)   As a matter of common experience, headaches can have various different causes.  There is no basis for Mr Hung to infer that the plaintiff’s headache was caused by excessive speed of the boat. Nor has Mr Hung offered any reasoning or explanation.

(3)   In any event, the plaintiff had a headache before she went wakeboarding the second time in the afternoon. Even if her headache was caused by excessive speed, it could mean the boat was going too fast when the others were wakeboarding.  Mr Ho said in his interview that at the time of the accident the boat was being driven more slowly than when a man was wakeboarding.  While Mr Hung said Mr Ho had mentioned to him the boat was “a bit fast”, Mr Hung clarified that it was about the morning session.  There is therefore in any event no basis to infer that the boat was travelling at an excessive speed at the time of the accident.

20.  The headache was the only thing mentioned in the report as the basis for inferring excessive speed.  In the next paragraph of the report, Mr Hung leaped to the conclusion that “the accident was caused by the excessive speed of the boat, the driving manner and attitude of the driver of the boat”.  When questioned by the court during the trial about the basis of his conclusion on speed, Mr Hung mentioned two additional matters which he said had also led him to conclude that the boat was going at an excessive speed: the shape and amplitude of the wake trailing the boat and the injuries suffered by the plaintiff.  He also said that based on his own observation, people in Hong Kong often drive their boats too fast.  This last point is plainly inadmissible and of no probative value.  I shall deal with the two new matters below.

21.  First, as to the shape and amplitude of the wake, Mr Hung claimed for the first time in his oral evidence that Mr Ho had mentioned to him what the wake looked like – specifically the angle between the arms of the chevron, and the height of the waves at the edge of the wake.  He said that the faster a boat was moving, the smaller the angle of the wake’s V-shape would be, and the lower would be the waves at the edge.  He said that as described by Mr Ho, the wake was narrow and the edges low.  He opined on this basis that the boat was travelling at over 30 km/h.

22.  This evidence is in my view again highly unsatisfactory.

(1)   Mr Hung simply said the wake was narrow and low without being able to give a concrete description.  What is narrow and what is low is a question of degree.  A description in such broad terms is vague and not informative.  Mr Hung confirmed that Mr Ho did not draw him a diagram.  Nor did Mr Hung himself record the shape or height of the wake in any form.  This in my view makes his opinion highly unreliable. 

(2)   I would generally expect that if a matter of fact concerning the case formed a significant part of the basis of an expert’s opinion, that fact would itself be proved by admissible evidence: see English Exporters (London) Ltd v Eldonwall Ltd [1973] Ch 415, 421; Phipson on Evidence (18^th ed), §33‑33; Hollander, Documentary Evidence in Hong Kong (2015), §27-008.  In the present case not only was there no evidence filed to deal with the shape and height of the wake, remarkably it did not even feature in the expert report.  It only came from the expert’s mouth when he was questioned by the court.  It was said to be something Mr Hung was told by Mr Ho, but there was nothing in Mr Ho’s interview or statement about it. 

(3)   Nor was the reasoning leading to the opinion properly explained.  There was nothing to show why Mr Hung formed any view about the speed of the boat because of the shape and rise of the wake.  There was no explanation of the relationship between the two.

(4)   The Code of Conduct for Expert Witnesses at Appendix D to the Rules of the High Court (Cap 4A) expressly states, at §8, that an expert report must specify, inter alia the facts, matters and assumptions on which the opinions in the report are based, and the reasons for each opinion expressed.  Plainly the report fell short of this requirement.

(5)   Expert evidence, if relied upon, must be properly adduced.  This is not only important as a matter of fairness between the parties but is crucial to enable the court to understand, assess and evaluate the opinions offered.  The court is not bound to accept an expert’s opinion asserted in a vacuum, without proper notice to the other parties and without objective support, even if there is no other opinion to contradict it.

23.  For these reasons Mr Hung’s opinion on the boat’s speed based on the shape and height of the wake is in my view inadmissible.  Even if it were technically admissible, I would not have placed any weight on it.

24.  Secondly, regarding the plaintiff’s injuries as a basis for inferring the boat’s speed, this is again regrettably not a matter referred to in the report itself.  Mr Hung is not a medical or neurological expert.  There is nothing to suggest he has enough relevant expertise on the extent of injuries relative to the speed of impact with water.  Nor is there any proper evidence of what he knew in relation to the nature and extent of the plaintiff’s injuries.  His opinion in this respect seems to be conjectural in nature based on speculation and impressions rather than the result of a studied analysis based on facts.

25.  In addition, while Mr Hung suggested at one stage that a wakeboarder would not have suffered such serious injury as the plaintiff’s if the boat had not exceeded a safe speed, he admitted the same could not be said if the wakeboarder had consumed alcohol.

26.  For the above reasons I find Mr Hung’s opinion on the boat’s speed based on the plaintiff’s injuries to be inadmissible and, in any event, not probative of anything.  It is notable that Mr Ho – who gave the only eye witness’s account – never suggested that the boat was travelling too fast.  There is no evidence at all to support the allegation that the boat was being driven by the 2^nd defendant at an excessive speed. 

Safety helmet

27.  The plaintiff relies on certain safety guidelines issued by the Water Sports Centres of the Leisure and Cultural Services Department which mentioned possible safety measures for water sports activities including wearing “suitable protective gear such as non-slippery shoes, gloves and helmet”.  However, these are suggestions for water sports generally and Mr Hung, the plaintiff’s own expert, said that helmets were generally not used by participants in wakeboarding.  He frankly admitted that it was not his practice even for students in his own wakeboarding classes to wear helmets.  The “Safety Manual for Water Skiing & Wakeboarding” issued by the Hong Kong Water Ski Association only mentioned that helmets “should be worn when ski jumping or racing”.  The “Safety Recommendations & Codes of Practice” issued by British Water Ski also advised: “ALWAYS use … a helmet when jumping”.  The plaintiff was not jumping or racing at the time.  There is nothing to suggest that the Hong Kong Water Ski Association regarded helmets as necessary or recommended for participants in ordinary wakeboarding or water skiing.  On this basis there is little to support the allegation that the 2^nd defendant fell below the applicable standard of care in failing to provide the plaintiff with, or to ensure that she wear, a safety helmet.

28.  Further and in any event, it is not clear that it was within the scope of the 2^nd defendant’s duty to provide safety helmets.  On the evidence, the plaintiff and her friends brought the wakeboards from the fish raft to the boat.  It is not clear whether it was the 1^st defendant, the 2^nd defendant or the fish raft that supplied the wakeboards.  When making the arrangements Mr Ho asked for a boat with a coxswain, not a wakeboarding instructor or coach.  Nor did the 2^nd defendant hold himself out to be an instructor or coach.  In the context of their arrangement based on the limited evidence there is about it, I do not think it was the duty of the 2^nd defendant as the coxswain to supply any personal equipment such as non-slippery shoes, gloves and helmets.

Observer on the boat

29.  It is alleged that the 2^nd defendant was negligent and also in breach of the duty under s 89 of the Merchant Shipping (Local Vessels) (General) Regulation (Cap 548F)[1] in failing to have an observer on the boat to keep proper surveillance of the plaintiff.  Mr Hung, the plaintiff’s expert, said that his own practice was not to have a professional observer on the boat but simply to ask one of the passengers to keep a look-out.

30.  The evidence was that in this case Mr Ho and his friends were indeed performing that function, irrespective of whether they were specifically asked or assigned by the 2^nd defendant to do so, which is not clear.  In any event there is nothing to suggest that the 2^nd defendant failed to stop the boat soon enough after the plaintiff fell and nothing to suggest that the absence of a designated “observer” was in any way causative of the accident or the plaintiff’s injuries.  This allegation of negligence must therefore fail.

Driving the boat whilst his ability was impaired by consumption of alcohol

31.  I accept the evidence given in Mr Ho’s interview that the 2^nd defendant had drunk beer during lunch.  In fact the 2^nd defendant did not deny having drunk alcohol that day; what he denied in the defence was that he was “affected by alcohol”.  In his submissions he asserted he had drunk only one can of beer during lunch but that is not part of the evidence. 

32.  There was no mention in Mr Ho’s interview how much beer the 2^nd defendant drank; nor was there any allegation that he drank a lot, or that he behaved in any way suggesting he was under the influence of alcohol.  In Mr Ho’s statement made almost two years after the interview, and two and a half years after the accident, it was asserted for the first time that the 2^nd defendant had drunk around 4 to 5 cans of beer during lunch.  I am sceptical whether that was not a subsequent embellishment.  The drinks were brought by Mr Ho’s party.  It seems inherently improbable that the 2^nd defendant would have drunk as much as 4 to 5 cans of beer from the beverages provided by his passengers and in their presence.  They were, after all, going to be in the boat driven by him in the afternoon.  If he did drink that much I would expect it to have been something surprising and notable for Mr Ho which he would have mentioned in the interview.  In fact I would expect it to have been mentioned to the police and Marine Department (both having opened a file on the case) but no such evidence was available.  Further as stated above there is no evidence that the 2^nd defendant was affected by the consumption of alcohol.  Mr Hung’s report also asserted that the 2^nd defendant had drunk 4 to 5 cans of beer but this seems to be multiple hearsay which does not add anything.

33.  This is not a matter I should resolve by drawing adverse inferences.  The 2^nd defendant was barred from giving evidence because of the failure to file a witness statement.  The plaintiff’s side also failed to call Mr Ho, who has since ceased to be the plaintiff’s boyfriend and failed to come forward to give evidence.  Mr Meyrick Wong who appeared for the plaintiff stated that Mr Ho’s eagerness to take part in the litigation had vanished in the past one or two years for reasons unknown.  Further, the plaintiff gave a statement to Mr Hung (not disclosed) and had a meeting with him but she did not give evidence at trial.  No explanation has been provided as to why the plaintiff’s team have not called the other participants[2] on that day to give evidence.  On the evidence all I can fairly find is that the 2^nd defendant did drink some beer during lunch but it is not known how much.  More likely than not it was not a remarkable amount.

34.  Mr Meyrick Wong referred to the safety manual issued by the Hong Kong Water Ski Association which contained the statement: “Skier/wakeboarders, drivers and observers are recommended to save alcoholic drink until completing skiing/wakeboarding.”  As a general recommendation this is no doubt wise but in the absence of evidence of how much the 2^nd defendant actually drank I do not think this provides a proper basis for finding him negligent in driving the boat after having drunk some beer during lunch.

35.  There was no marine safety law at the time prohibiting the consumption of alcohol altogether.  Mr Wong drew my attention to a recent proposal by the Marine Department for legislation on the control of boating under the influence of alcohol or drugs along the line of similar provisions in the Road Traffic Ordinance (Cap 374)[3].  The same prescribed alcohol limits were proposed.  Mr Wong submitted that according to guidance given by the Road Safety Council, 500ml of beer would cause a person to reach the relevant breath limit, ie 0.022 mg of alcohol per 100 ml of breath. 

36.  That proposal was of course not the law at the time.  In any event, there is no basis for me to find that the 2^nd defendant had drunk more than 500 ml of beer or that his breath or blood alcohol exceeded the limit or that he was in any way adversely affected by the effect of alcohol at the time of the accident.

Failing to advise the plaintiff not to consume any alcoholic drinks; failing to prevent the plaintiff from wakeboarding after consuming alcohol

37.  Mr Wong submitted that the 2^nd defendant was involved in the activity practically as a “coach” or a “commander”, and had a duty to ensure that all the participants were in a sober and fit state before taking them to the sport.  He submitted that the 2^nd defendant was negligent in failing to ensure that nobody involved had consumed alcoholic drinks.  Mr Ho’s evidence in his statement and interview, which I accept, was that the 2^nd defendant did not tell the passengers they could not wakeboard after drinking alcohol, and did not prevent them from wakeboarding in the afternoon.  In his defence the 2^nd defendant suggested he did advise the plaintiff (presumably including other passengers) not to drink too much beer.  I do not accept this assertion.

38.  Having regard to the entire circumstances of the case, I am unable to accept Mr Wong’s submission.  The plaintiff was an adult in her late 20s.  Mr Ho and his colleagues were probably also in the age range of late 20s to early 30s.  They were independent, educated adults of full ability who could reasonably be expected to take care of themselves and to avoid taking part in water sports if they felt unwell or unfit.  They hired the boat and hired the 2^nd defendant as a coxswain.  There is no suggestion that Mr Ho had specified that the coxswain had to be capable of and responsible for giving them training or instructions on wakeboarding.  A coxswain (or, for that matter, any person on the boat) might, as a matter of common sense, suggest that a passenger did not take part in water sport such as wakeboarding if the passenger was obviously unfit.  But save in extreme circumstances, in my view neither the 2^nd defendant’s duty of care nor his contractual power extended to dictating who could and who could not wakeboard in the afternoon.  On the contrary, it was the wakeboarders who decided who wished to wakeboard and whose turn it was to do so.  There is in any event no evidence that the plaintiff would, more probably than not, have heeded a reminder for her not to wakeboard that afternoon merely because she had had some beer.

39.  While the 2^nd defendant probably knew that the passengers had drunk some beer, there is nothing to suggest he knew the plaintiff was unfit to wakeboard.  Certainly there was no suggestion in Mr Ho’s interview or statement that the plaintiff was behaving in any unusual manner or showing any symptom of unfitness such that anyone skilled in the sport would have stopped her from taking part.  The plaintiff had a headache in the afternoon but she soon recovered.  In my view this did not amount to circumstances in which the 2^nd defendant could be expected to try to prevent the plaintiff from wakeboarding.  There is no suggestion that any of her friends advised her against wakeboarding whether because of the headache or otherwise. 

Failing to provide a safe system and environment to the participants

40.  It is in my view difficult to identify a part of the system that was particularly and inherently unsafe.  It is easy to say with hindsight that the plaintiff would not have sustained injury at all if she was prevented from wakeboarding, or that her injuries might have been less severe if she had put on a helmet.  But even now the precise cause of the accident is not clear.  It does not seem to me right to impose on the 2^nd defendant a duty in effect to see to it that the participants were not injured.  As Bokhary PJ said in Luen Hing Fat Coating & Finishing Factory Ltd v Waan Chuen Ming (2011) 14 HKCFAR 14 at §30, ultimately it is necessary to stand back and take a holistic view of foreseeability, proximity and the need to be satisfied that it would be fair, just and reasonable to impose a duty of care.  The passengers were not the 2^nd defendant’s employees.  Rather, he was their contractor engaged to provide services of a limited scope.  If the plaintiff fails (as in my opinion she has) to establish negligence on the basis of the more particular allegations of negligence discussed above, there is no basis to impose a general duty and to hold that it was breached simply because the plaintiff had sustained injuries.

Res ipsa loquitur

41.  In my opinion the maxim res ipsa loquitur does not assist.  As Bokhary PJ explained in Sanfield Building Contractors Ltd v Li Kai Cheong (2003) 6 HKCFAR 207 at §3, the maxim represents not a substantive legal doctrine but a “mode of inferential reasoning” that comes into play where an accident of unknown cause that has occurred

“would not normally happen without negligence on the part of the defendant in control of the object or activity which injured the plaintiff or damaged his property. In such a situation the court is able to infer negligence on the defendant’s part unless he offers an acceptable explanation consistent with his having taken reasonable care.”

Wakeboarding seems to me to be a sport with inherent risks.  The accident that had unfortunately happened is not such that from its occurrence alone one can infer negligence on the part of the 2^nd defendant.  As Mr Hung accepted, he could not say whether the plaintiff’s injuries resulted from her failure to protect her head and face with her arms as she fell.  Mr Wong also acknowledged in his submissions that drinking could adversely affect a person’s muscle-coordination and ability to react.

Conclusion on liability

42.  For the above reasons I conclude that the plaintiff has failed to prove that the 2^nd defendant breached any legal duty of care towards her that caused the accident and her injuries.  The 2^nd defendant is therefore not liable to the plaintiff.

CONTRIBUTORY NEGLIGENCE

43.  On the above basis the question of contributory negligence does not arise.  If I am wrong and should have found the 2^nd defendant liable, then I might consider that the plaintiff’s injury was caused partly by her wakeboarding after consuming alcohol.  Since the precise apportionment of responsibility for the accident and injury as between them would depend on the basis on which the 2^nd defendant was found liable, it would not be appropriate for me to conduct that exercise on a hypothetical footing.

1^ST DEFENDANT’S LIABILITY

44.  As stated above, default judgment had been entered against the 1^st defendant.  As against the 1^st defendant, the statement of claim pleaded that he was vicariously liable as the employer or principal of the 2^nd defendant, and also that he was negligent in failing to instruct the 2^nd defendant to assign a person to act as observer, to maintain a low boat speed, not to drive the boat while his ability to operate it was impaired by alcohol, not to tow anyone to wakeboard when that person had consumed alcohol, not to allow any beginner to wakeboard without wearing a helmet, in failing to provide the 2^nd defendant with any adequate supervision as to how to perform his work safely, and in exposing the plaintiff to risk of injury which the 1^st defendant ought reasonably to have known.

45.  As at present advised, it seems to me that the allegations against the 1^st defendant arguably have the same substance as those against the 2^nd defendant and may be difficult to uphold given my findings with respect to the 2^nd defendant.  At least as far as vicarious liability is concerned, I know of no principle which can support a finding of such liability on the part of the employer where the employee is found not negligent.  On the basis of this judgment it may be that there is an argument in favour of the 1^st defendant that the default judgment against him should be discharged.  In Prof Glanville Williams’ classic work Joint Torts and Contributory Negligence (1951), at §19, it was stated that if a plaintiff fails at trial against the defendants who appear, for a reason that goes to all the defendants, an interlocutory judgment obtained by default against a defendant must be discharged.  In these circumstances it seems to me that I should give the plaintiff and the 1^st defendant an opportunity of being heard before deciding what should happen to the default judgment against the 1^st defendant. 

QUANTUM

46.  The question of quantum does not arise as against the 2^nd defendant.  In case I am wrong above, and insofar as it is relevant for the purposes of the claim against the 1^st defendant, I shall assess the damages below. 

47.  Neither defendant filed an answer to the revised schedule of damages of the plaintiff.  Neither of them put forward any positive case on the question of quantum or significantly challenged the plaintiff’s case at trial.

48.  The plaintiff’s injuries and their impact may be briefly summarised as follows.  The plaintiff was sent to the A&E Department of Queen Elizabeth Hospital immediately after the accident.  CT scan of the brain showed an acute left subdural haematoma.  She was admitted to the neurosurgery ward for treatment.  Emergency craniectomy and clot evacuation was performed on the same day.  MRI on 16 July 2010 showed evidence of trauma-related injury in bilateral frontal lobe, bilateral basal ganglia, genu of corpus callosum and right midbrain, and signal change in left posterior cerebral artery territory.

49.  The plaintiff was transferred to Shatin Hospital for further rehabilitation on 14 September 2010, which continued until 28  February  2011 when the plaintiff was transferred back to Queen Elizabeth Hospital for cranioplasty, which was performed on 3 March 2011.  She finally returned home on 8 April 2011.

50.  In September 2011 the plaintiff was referred to Prince of Wales Hospital for occupational therapy for cognitive training, mobilisation and strengthening.  A Neurobehavioural Cognitive Status Examination was conducted on 20 October 2011 and found the plaintiff to be alert and orientated, showing satisfactory performance in attention, comprehension, language, constructional ability, calculation and judgment.  However, she showed moderate impairment in memory and mild impairment in similarity reasoning.  The plaintiff had defaulted in treatment there since October 2011.

51.  As a result of the accident the plaintiff’s physical and mental abilities have been impaired.  She has also suffered gynaecological problems, and developed knees and ankles pain.  I am not persuaded, however, that her hyperthyroidism, diagnosed in November 2010, was caused by the accident.

52.  Her neurology expert’s opinion on the condition of the plaintiff was as follows:

(1)   The plaintiff sustained a severe head injury but had recovered since the accident to the extent that she could express herself normally in speech, had some use of her left limbs but probably had an impaired visual system including impaired pursuit and a right sided visual field defect.

(2)   Examination of the plaintiff showed evidence of exaggeration on her part of her disabilities.  She could understand speech and converse sensibly and her poor performance on cognitive testing was surprising.  Back in 2011 she performed well on cognitive tests, and one would expect significant improvement in an otherwise healthy young person.  However, the expert considered the plaintiff’s apparent poor cooperation could be a feature of loss of initiative associated with basal ganglia disorders and might not be evidence of a deliberate attempt to deceive.

(3)   The expert accepted the psychiatric expert’s view that the plaintiff was a mentally incapacitated person within the meaning of the Mental Health Ordinance (Cap 136).  He assessed that there is 15% impairment of the plaintiff’s left hemiparesis, 25% cognitive impairment and 5% visual impairment, which combine to give a whole person impairment of 39%. 

(4)   It would be unlikely that the plaintiff could function at the level before the accident in the foreseeable future.  Efficient typing would probably be impossible, though it might be possible to train her to perform at least in a low level clerical job.

General damages

53.  The plaintiff claims general damages under two heads.  First, she claims $150,000 for loss of society.  This is a claim made pursuant to s 20C(1)(e) of the Law Amendment and Reform (Consolidation) Ordinance (Cap 23) for the loss of the plaintiff’s society suffered by her parents.  The sum of $150,000 is the maximum allowed under s 20C(2)(a), which refers to the sum for bereavement under s 4(3) of the Fatal Accidents Ordinance (Cap 22).  Given that the plaintiff’s parents have not been completely deprived of the plaintiff’s society I consider that an appropriate award under this head is $50,000.

54.  Secondly, the plaintiff claims $1,000,000 for pain, suffering and loss of amenities (“PSLA”).  Having regard to the precedents of Lee Hoi Yin v Ho Ka Yin (HCPI 81/2003, 22 November 2004) and Li  Cheong Kwok v Ueng Teh Chi Francis (HCPI 1020/1999, 20 March 2001), I regard $1,000,000 as an appropriate award for PSLA in this case.

Special damages

55.  Turning to special damages, I award the following sums for expenses, totalling $173,517, which seem to me to be supported by documentary evidence or a reasonable approximation:

(1) medical expenses incurred in the total sum of $96,178;

(2) transportation expenses incurred in the total sum of $18,310;

(3) tonic food expenses incurred in the total sum of $18,900;  and

(4) expenses on purchase of medical equipment and consumables in the total sum of $40,129.

Mother’s care pre-trial

56.  The plaintiff claims the sum of $992,250 as the value of the services of her mother over the pre-trial period of 63 months (July 2010 to October 2015), based on the cost of a full time nursing and care attendant, being $525 on a per day basis.  Mr Wong relied on Ho Kwai-loy (an infant by his father and next friend Ho Pei) and Leung Tin Hong v Another [1978] HKLR 72, a case where the Court of Appeal allowed a claim for the loss of wages of the father of the injured person for 11 days because he had to visit the child and suffered loss of wages.  The Court of Appeal had in turn relied on Donnelly v Joyce [1974] QB 454 in which the English Court of Appeal allowed an injured boy to recover damages representing his mother’s lost wages when she gave up her job in order to care for him.  The theory adopted was that such damages was compensation for the plaintiff’s own loss, representing the value of the services the plaintiff needed as a result of the injury, albeit assessed, in that case, in the amount of the forgone wages of the carer.

57.  The theory espoused in Donnelly v Joyce was jettisoned by the House of Lords in Hunt v Severs [1994] 2 AC 350, which stated that the rationale of this head of damages was not in truth to compensate the plaintiff, but to enable to voluntary carer “to receive proper recompense for his or her services” (p 363C).  The House went so far as to say that the damages recovered would be held on trust by the injured person for the carer, though that aspect of the decision had been widely criticised (see eg McGregor on Damages (19^th ed), §38-228).  In saying that the central objective is compensating the voluntary carer, the House did not elaborate upon whether this means compensation on a restitutionary basis, in the sense of giving the carer remuneration on a quantum meruit for the services rendered, or on a strictly compensatory basis, in the sense of indemnifying the carer for the forgone wages of the job he has relinquished or, in the case of a relation not previously employed, for the opportunity lost of earning such wages.

58.  The authorities do not suggest that the actual lost earnings form the upper limit of an award, though they may well, at any rate where the lost wages do not exceed the commercial cost of obtaining care, provide a starting point: Evans v Pontypridd Roofing Ltd [2002] PIQR Q5.

59.  The appropriate award on account of care provided gratuitously by a relation has to be broadly assessed, having regard to all the relevant circumstances of the case including the nature of the injuries suffered by the plaintiff, the nature and extent of the care required and provided, the nature and remuneration of the employment relinquished by the carer and the cost of obtaining the requisite care on a commercial basis.  It may be relevant to assess the care with reference to that which is part of ordinary family life, but it would not be appropriate to take a “stop-watch” approach to try to tot up the minutes spent by the carer referable solely to the injured person each day, or necessarily to exclude every activity which the carer would have done in any event had the plaintiff not been injured: see Evans v Pontypridd Roofing Ltd at §§25, 30-31; see also Ta Xuong v The Incorporated Owners of Sun Hing Building [1997] 4 HKC 171 at 182, per Seagroatt J. 

60.  In the present case the mother had previously worked as a dish cleaner in a restaurant.  She gave up her job after the accident.  Since there is no evidence of the actual amount of her wages, I am prepared to adopt a rough estimate of $5,600 per month taking into account the levels of minimum wage. 

61.  I am satisfied on the mother’s evidence that the plaintiff required her full-time care and attention in the first year or so after the accident, up to the time of the neuro-behavioural cognitive status examination in October 2011.  During that time the mother also took the plaintiff to the Mainland for treatment for three times lasting a total period of about three months.  I think that for the 15 months from July 2010 to October 2011 the amount under this head should be $5,600 × 15, ie $84,000.

62.  I consider, however, that for the 48 months from November 2011 to October 2015, compensation should not be assessed on a full-time care basis.  It seems to me the plaintiff’s condition was improving over time.  According to the occupational therapy report, as at October 2011 the plaintiff was able to manage basic self care (except perhaps bathing).  The psychiatrist (Dr Kwok) who examined the plaintiff in September 2013 stated the plaintiff could handle eating, dressing and toileting by herself.  The neurologist (Dr Choa) who examined the plaintiff in October 2014 stated that she had substantially regained power in her four limbs.  She could walk unaided, or with a stick, and could go up and down stairs.  She could express herself normally in speech.  She was able to have telephone conversations with friends.  There was mild but significant neurological residua, with an estimated MMSE score of 20 out of a possible 30 points.  In these circumstances the plaintiff did not need nursing care, but some domestic assistance and escort when going out.  I allow $2,800 per month over this period, or $2,800 × 48, ie $134,400.  The total sum for the head of pre-trial care is therefore $218,400.

Pre-trial loss of earnings

63.  The plaintiff claims pre-trial loss of earnings (including MPF) in the total sum of $529,200, on the basis that she used to earn $8,000 a month as a customer services clerk before the accident.  I allow this sum.

Future loss of earnings

64.  The plaintiff claims future loss of earnings in the sum of $2,676,492.  This is calculated on the basis that the plaintiff would have been able to earn an average of $9,500 per month from the age of 32 to the age of 65, and applying a multiplier of 22.36 taken from the tables in Chan Pak Ting v Chan Chi Kuen [2013] 2 HKLRD 1.  While her expert has opined that she might be able to be trained to perform in a low level clerical job, it is not clear at all what the prospects of such employment are.  I think this head should be allowed in the sum claimed.

Future medical and other care

65.  The plaintiff claims a sum of $25,000 in respect of future occupational therapy, medical treatment and travelling expenses for such attendance.  I allow this claim in full.

66.  The plaintiff also claims $2,221,596 as the full cost of a domestic helper (based on $72,720 per annum and a life-long multiplier of 30.55).  I do not think the plaintiff will need full-time assistance but it is more likely than not that she will need some help with regard particularly to cooking and going out.  The problem however is that there is no evidence from the defence of what such part-time assistance would cost and indeed whether it would be lower than the cost of a full-time foreign domestic helper.  In these circumstances I would allow this head but reduce the multiplicand to $63,060 (using the current minimum wages and food allowance of domestic helpers and excluding any sum for the employer’s levy) and allow a sum of $1,926,483.

Future transportation expenses

67.  The plaintiff claims that due to the impairment of her mobility she will incur future additional transportation expenses for attendance of rehabilitation treatments and for social events.  She claims $183,300 under this head (being $500 per month and a multiplier of 30.55). I do not think this claim is borne out by the evidence.  The plaintiff’s mobility is no longer greatly affected by the injuries.  Indeed Dr Choa recorded she went to his clinic by train and MTR requiring two changes and a significant walk.  There is also duplication of the claim allowed above for travelling expenses for attending occupational therapy and medical treatment. I am not prepared to allow any sum under this head.

Extra cost of holiday or socialisation

68.  The plaintiff claims extra cost of holiday or socialisation $293,280 (based on an annual sum of $9,600 and a multiplier of 30.55).  It is said that due to the impairment of the plaintiff’s mobility, funding should be provided for socialisation and recreation activities, as well as extra cost of holiday accompanied by family member and caregiver.  Given the nature of her injury and the relatively mild effect it has on her mobility, I am not prepared to allow this head.

Cost of fund manager

69.  The plaintiff claims the cost of a fund manager in the sum of $254,904. Given that the total sum of future loss to be awarded is not particularly large I am not prepared to award any cost on account of fund management fees.

The total

70.  In summary, the amounts of the above heads of claim allowed are as follows:

Loss of society	50,000
PSLA	1,000,000
Special damages	173,517
Mother’s pre-trial care	218,400
Pre-trial loss of earnings	529,200
Future loss of earnings	2,676,492
Future medical and other care	25,000
Future domestic help	1,926,483
Total	6,599,092 =================

71.  If liability is established then the amount of damages may overall have to be reduced on account of contributory negligence. 

CONCLUSION AND ORDERS

72.  For the above reasons, the plaintiff’s action is dismissed as against the 2^nd defendant.  The plaintiff and the 1^st defendant do have leave to approach my clerk within 35 days to fix an appointment with this court for the purposes of disposing of the action as against the 1^st defendant.  There will be liberty to apply.

73.  I make an order nisi that the plaintiff do pay the 2^nd defendant the costs of the action, to be taxed if not agreed.  The costs as between the plaintiff and the 1^st defendant are reserved.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).