WONG KWUN SANG v. YIU WOON MING AND OTHERS

HCPI 633/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 633 OF 2004

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J U D G M E N T

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1. The plaintiff brings this claim (by his next friend) for damages for personal injuries suffered by him during the course of his employment as a formwork carpenter working for the 1^st defendant on 12 January 2002 when he suffered severe head injuries as a result of a fall down a lift shaft at a construction site at the proposed CDA Development (Phase 1) NKIL 6320, Nos. 861-871 Lai Chi Kok Road, Kowloon (“the Site”).

The accident

2. Three days before the accident, the erection of wooden formwork for two lift shafts had been started at the Site.  The plaintiff and a co-worker, Chung Wui Kwan (“Chung”), were assigned to carry out the formwork erection.

3. On the day of the accident, since the erection of formwork had been completed that morning for the exterior of the two lift shafts, the plaintiff and Chung were told to continue to erect the wooden formwork at the interior of the two lift shafts.

4. The plaintiff then worked in the lift shaft of lift nos. L35 and L36 while Chung worked in the lift shaft of lift nos. L37 and L38.  Each worked on their own and alone in the respective lift shafts.

5. Both the plaintiff and Chung, together with their gang leader, Tong Wai Kin, took time off for tea at about 3.35 p.m. and returned to continue their work in the lift shafts after tea at about 4 p.m.

6. When at about 5.45 p.m., the workers at the Site were preparing to go off work for the day, they did not see the plaintiff at the changing room although they noticed that the plaintiff’s clothes were still there.  The workers including Chung then went to look for the plaintiff at the lift shaft where he worked.

7. The plaintiff was found at the bottom of the lift shaft lying there unconscious and in a pool of blood with his safety helmet several feet away from him.

8. An ambulance was called and the plaintiff taken to the Princess Margaret Hospital where he was found to have suffered a fractured skull and with severe head injuries.

Investigation by the Labour Department

9. After the accident came to light, the Labour Department was notified of same.  Thereupon, an investigation was undertaken by them of this accident and made the following findings :

(1)     The lift shaft for lift nos. L35 and L36 were separate and isolated from the lift shaft for lift nos. L37 and L38 at the Site.

(2)     A wall opening was constructed at where the entrance to lift no. L35 would in future be and that wall opening was located two metres above the bottom of the lift shaft.

(3)     A tier of metal frames of 1.9 metres high were erected at the bottom of the lift shaft with planks and battens placed on top of the metal frames forming a working platform/passageway along the side of the walls of the lift shaft leaving a void at the centre of the lift shaft.

(4)     One such metal frame with one end of a batten placed on it was adjacent to the wall opening, the other end of the batten rested on a waling near the wall opening.

(5)     At the bottom of the lift shaft was found a patch of blood and a yellow safety helmet which appeared to be undamaged some two metres away from the blood patch.

(6)     Immediately above the patch of blood, another batten (marked “WB” on photograph 5 attached to the Report) which was on top of the tier of metal frames were found to be broken and some pieces of wooden boards and battens scattered at the bottom of the lift shaft.

(7)     All the metal walings at the interior of the lift shaft had been fastened except for two (marked “a” and “b” on photograph 2 attached to the Report).  These two walings were located at the wooden formwork above the place where the plaintiff was found lying unconscious.

(8)     Two of the four bolts in the waling marked “a” had not been completely fastened to the wooden formwork, while for the waling marked “b” none of the bolts had been fastened.

(9)     The waling marked “a” was six metres above the patch of blood and had a horizontal distance of two metres from the blood patch; the waling marked “b” was two metres lower than that marked “a”.

(10)    The plaintiff fell a distance of about 4.5 metres to the bottom of the lift shaft.

10. Information were also obtained from other workers who had discovered the injured plaintiff, in particular from Tong and Chung, who told the factory inspector that when the unconscious plaintiff was found by them, the fragment of the broken batten marked “WB” had been detached by one of the rescuers since it was loosely attached.  They also told the inspector that the plaintiff was wearing a safety helmet during the tea break.

11. As there was no eye-witness to this accident, there is no direct evidence of how it happened.  Moreover, the plaintiff, who was probably the only person who would have first hand knowledge of how it happened, was not in a position to communicate due to paralysis from his injuries.  Such disability of the plaintiff would appear to be permanent.

12. However, from all the factual circumstances found by the factory inspector at the scene of the accident, it was stated in the report that it was believed that the plaintiff might have been installing washers and nuts to the bolts of the metal walings marked “a” at the time of the accident since two of the four bolts had not yet been fastened by washers and nuts.  It was further believed that the plaintiff, in fastening such washers and nuts, was either standing on the batten marked “B” in photograph 2 (attached to the Report) or was using a metal waling (width 50 mm) which was above batten “B” as a foothold.  The dimensions of batten “B” was 1,800 mm in length, 100 mm in width, and 50 mm thick.

13. In either position, the plaintiff could easily have lost his footing due to insufficient foothold and fallen to the bottom of the liftshaft.

14. It was further believed that during his fall, the plaintiff likely struck the batten marked “WB” thereby breaking the batten “WB”.

Recommendations made by Labour Department

15. As a result of their investigations, findings and conclusion arrived at, the Labour Department, in the accident Report, recommended the following to prevent falling hazard to workers at the Site :

“Adequate steps, including the provision, use and maintenance of working platforms, guard-rails and toe-boards, should be taken to prevent any person on a construction site from falling from a height of 2 metres or more.

Sufficient supervision should be exercised to ensure safety at work.”

Aftermath of the accident

16. Quite apart from the recommendations made, or even possibly as a result of it, the Commissioner for Labour issued and served a Suspension Notice upon the main contractor (the 4^th defendant herein) of the Site dated 13 January 2002 under section 10 of Occupational Safety and Health Ordinance for suspension of works at the Site.

17. The reason given in the Suspension Notice reads :

“I HEREBY GIVE you, as the employer responsible for premises where a workplace is located, namely Proposed CDA Development (Phase I) NKIL 6320 Nos 861-871 Lai Chi Kok Road, Kowloon (‘the said premises’), NOTICE that I am of the opinion that because of an activity undertaken on the said premises, namely formwork in the lift shaft for lift nos. L35 and L36 at Central Podium, there is an imminent risk of death or serious bodily injury, and that the matters which create, or are likely to create the said risk(s) are: workers engaged in the said activity without proper protection and support are in danger of falling from height.

By virtue of the power vested in me under section !0 of the Occupational Safety and Health Ordinance, I HEREBY DIRECT the said activity not to be undertaken while this notice remains in force.

This notice takes effect on 13^th January 2002.”

18. Upon receipt of the Suspension Notice by the 4^th defendant, immediate steps were taken by them to remedy the defect complained of in the Suspension Notice.

19. As a result of those steps taken, the 4^th defendant, by letter of 18 January 2002 wrote to the Commissioner of Labour to the effect that “we are now reviewing our safety policy and strengthening all safety measures to try to ensure proper compliance with all statutory requirements”.

20. Enclosed with their letter of 18 January to the Commissioner of Labour, the 4^th defendant furnished to the Commissioner four appendices being Risk Assessment, Method Statement, Safety Precaution and Training Record.

21. That letter from the 4^th defendant further requested the Commissioner to consider revoking the Suspension Notice.

22. By reason of such steps taken by the 4^th defendant, the Suspension Notice was revoked by the Commissioner for Labour by letter dated 18 January 2002 to the 4^th defendant.

23. For present purposes it is not necessary to go into all the details contained in the Risk Assessment, Method Statement, Safety Precaution and Training Record being the four appendices attached to the 4^th defendant’s letter of 18 January to the Commissioner with a view to getting the Suspension Notice lifted by the Commissioner.

24. It is sufficient to simply state that part of the proposal advanced by the 4^th defendant in these four appendices included the provision of proper working platforms with adequate railings and various other measures to reasonably ensure the safety of workers working at a height of over two metres inside the lift shaft of lift nos. L35 and L36.

The Plaintiff’s claim

25. The plaintiff’s claim, in so far as the issue of liability is concerned, relies entirely on the findings and recommendations made in the Factory Inspector’s Report and the expert evidence of Dr Steve Rowlinson who, in his report, states that the defendant’s system of construction (in relation to the lift shaft for lift nos. L35 and L36 at the Site) did not comply with many safety regulations relating to guard rails, fall protection, access risk assessment, planning and the provision of appropriate protection equipment.

26. That report of Dr Rowlinson concludes as follows :

“I have no doubt that a whole series of regulations, and good practice, have not been complied with.  This was an accident waiting to happen due to the lack of management and supervisory oversight.  By failing to provide a proper means of access and working platform and by failing to adequately supervise the works the defendant has set up the preconditions for an accident waiting to happen.

…

It is my opinion that the place of work is unsafe, management did not exercise proper planning nor control of the construction process in the lift shaft and no proper method statement nor risk assessment appears to have been prepared for the lift shaft construction.  I am also of the opinion that a number of regulations were not complied, as detailed above.”

27. On that basis, it is the plaintiff’s claim that the defendants had failed to provide the necessary or proper work platform with adequate guard rails for the plaintiff to work at height of over two metres; failure to provide adequate and proper lifelines with secure anchorage points to which the plaintiff could attach his safety belt when carrying out his work at height, and generally failure to provide an adequate and/or safe system of work for the plaintiff working at height.

28. Furthermore, the plaintiff also pleads his case on the breaches of statutory requirements by the defendants based on the same factual footing.

29. The plaintiff also relies on what was done by the 4^th defendant after the accident to the plaintiff to ensure that the system was thereby made safe and to comply with the statutory requirements for the Suspension Notice to be lifted by the Labour Department.

The Defence

30. All the defendants were represented by the same firm of solicitors and same counsel.

31. Although there was no formal admission made as to liability, there was also no challenge to the findings and recommendation made by the Factory Inspector relating to this accident to the plaintiff and no substantial challenge made to the expert evidence of Dr Rowlinson, albeit that Dr Rowlinson was cross-examined shortly by counsel for the defendants.

32. More importantly, no expert evidence was adduced by the defendant to challenge the evidence of Dr Rowlinson.

33. Furthermore, there is no dispute as to what was done at the Site by the 4^th defendant being the main contractor in order for the Suspension Notice to be lifted by the Labour Department.

34. The defence relied upon by the defendant which goes to the issue of liability is one of causation.  It is the defendant’s case that the head injury suffered by the plaintiff was not as a result of his fall, but that the fall was as a result of spontaneous haemorrhage to the plaintiff’s brain, in short, the plaintiff suffered a spontaneous haemorrhage or stroke to his brain which caused him to fall from where he was working to the bottom of the lift shaft.

35. Secondly, the defendant also relies on contributory negligence of the plaintiff.

Spontaneous Cerebral Haemorrhage or Traumatic Cerebral Haemorrhage

36. The evidence relating to this issue comes from the two experts in neurology called respectively by the parties, namely Dr Huang Chen Ya for the plaintiff, and Dr Yu Yuk Ling for the defendants.

37. It is common ground that the plaintiff suffered :

(a)      a fractured skull;

(b)     thick left epidural haematoma in the vicinity of the skull fracture; and

(c)     intracerebral haematoma to the right side of the right ventricle with intraventricular extension, i.e. blood flowing into the ventricle.

38. From such injuries of the plaintiff, Dr Huang takes the view that in this case it was the fall that caused the injuries to the plaintiff.

39. On the other hand Dr Yu concedes that although he cannot rule out the possibility that the plaintiff had an accidental fall thus sustaining the head injury, in his view, however, it was more likely that the plaintiff had a stroke which then caused him to fall and causing the skull fracture.

40. In his evidence, Dr Huang gave the following reasons why he took the view that he did, namely that the plaintiff’s cerebral haematoma was caused by trauma.

41. Firstly, there was no indication in the plaintiff of hypertension which is indicated by the blood pressure reading taken from the plaintiff after the accident, and also absence of any medication prescribed to the plaintiff before his accident for the control of blood pressure.  Hypertension accounts for 74% of strokes and in this case, there is no evidence of hypertension in the plaintiff.

42. Secondly, a study showed that only 1% of spontaneous haematoma occurred in the region of the caudate neucleus.

43. Thirdly, that the plaintiff’s injuries are consistent with a traumatic origin.

44. On the other hand, Dr Yu also gives reasons for his opinion.

45. He accepts that there are no predisposing indicators in the plaintiff relating to the plaintiff suffering from hypertension.

46. Basically, Dr Yu gives two reasons why he opined that in the present case, the plaintiff likely suffered a stroke which led to him falling.

47. Firstly, Dr Yu says that the common sites of haematoma for traumatic intracerebral haemorrhage (TICH) are usually found at the frontal and temporal poles of the brain, and that basal ganglia haemorrhage (as in the present case) occurs in only a small minority of cases (2% to 3%), most of which are high velocity impact involving traffic accidents since such injuries are believed to be brought about by high velocity impact.

48. Secondly, Dr Yu takes the view that a fully conscious subject in an accidental fall would usually sustain injuries to the lower limbs or back in addition to the head injuries since the lower limbs or back usually land first.  That is absent in the present case which would suggest that the plaintiff’s consciousness was impaired at the time of the fall such that his reflex protective mechanism was not operating.

49. In conceding that there was no indication of the plaintiff in this case suffering any long term hypertension, Dr Yu does say that from the blood pressure taken of the plaintiff after his admission to hospital, there was a possibility that the plaintiff was either suffering from intermittent hypertension or from stress at the time of his fall, which could in turn case the spontaneous intracranial haemorrhage.

50. For those reasons, Dr Yu concluded in his report dated 7 February 2005 as follows :

“I conclude it is more likely that [the plaintiff] had a stroke (SICH in the form of right basal ganglia haemorrhage with intraventricular blood) causing the fall and the ensuing head injury (left parietal epidural haematoma and left frontal contusion). However, from the available medical evidence, the possibility that [the plaintiff] had an accidental fall and sustained the head injury (with left parietal epidural haematoma, left frontal contusion, right basal ganglia haemorrhage with intraventricular blood) cannot be excluded.” 

51. In coming to a determination between the difference in opinion expressed by the two respective neurologist as to whether in the present case, the plaintiff had suffered a spontaneous intracranial haematoma resulting in his falling from height or whether his head injuries were caused traumatically by an accidental fall, I note first of all that there was a shift by Dr Yu in his evidence as to the site of the haemorrhage.

52. In his report dated 7 February 2005, and after viewing the films of computed tomography (CT scans) of the plaintiff’s brain, he stated in paragraph 8 of that report :

“8.    CT performed at around 20:00 h on 12.1.2002 showed three sites of intracranial haemorrhage: (a) a large right basal ganglia haemorrhage especially at the caudate neucleus, measuring 2.5 x 4 x 5.5 cm and exerting prominent mass effect; (b) intraventricular haemorrhage with blood in the right lateral ventricle; and   (c) left epidural haematoma, elliptical in shape (2.5 x 4 x 5.5 cm) and exerting prominent mass effect. There was also a small haemorrhagic contusion at the left frontal lobe.”  (my emphasis)

53. The plaintiff’s treating neurosurgeons (in government hospitals) had also stated that the site of the haemorrhage of the plaintiff’s to be at the right caudate neucleus and at the ventricle.

54. So too had the plaintiff’s expert, Dr Huang, dealt with this case, namely that the haemorrhage was a haemorrhage of the caudate neucleus and also affecting the ventricle.

55. However, when Dr Yu gave evidence in court at the trial, there was a shift in that his evidence was that the haemorrhage suffered by the plaintiff was “mainly putaminal” when nowhere in his earlier reports had he even mentioned the putamen being the site or one of the site of the haemorrhage.

56. This shift in the medical evidence of Dr Yu will be seen in the following part of this judgment to be not an insignificant shift.

57. While it is common ground between the experts in this case, that it is very rare for a spontaneous intracranial haemorrhage to occur in the caudate neucleus, medical literature produced by the defendant does show that in a study carried out at the University of South Alabama Medical Centre, the most common location for a spontaneous intracerebral haemorrhage to be the putamen which accounts for 35% to 50% of such cases.  In the case of the caudate, it only accounts for about 5% (STROKE Pathophysiology, Diagnosis, and Management, 4^th edition, Chapter 13 “Intracerebral Haemorrhage” by J.P. Mohr et al at page 328-329).

58. I also take into account the fact that no radiologist was called to interpret the films of the CT scan to say that the haemorrhage occurred mainly in the putamen (as opposed to the caudate) when all the earlier opinion expressed showed it to be the caudate with some extension into the ventricle.

59. I have therefore little doubt that this shift by Dr Yu in the medical evidence was made by him in a somewhat vain attempt to strengthening the defendant’s case that the plaintiff’s injuries was due to a stroke which resulted in him falling rather than being caused by a trauma.

60. I therefore reject that evidence of Dr Yu.

61. I have also been referred to a further passage in the same medical literature by J.P. Mohr where at page 347 it states :

“The classic presentation of putaminal haemorrhage comprise massive haemorrhages, with rapidly evolving unilateral weakness accompanied by sensory, visual, and behavioural abnormalities.  Headache is common, as is vomiting, within a few hours of onset.  Although the onset is abrupt, there is often a gradual worsening of both the focal deficit and the level of consciousness in the following minutes or hours.  A ‘maximal from the onset’ deficit is uncommon.”

62. Based on the above passage, even granted that it was a putaminal haemorrhage, the scenario painted by Dr Yu, that there was a stroke in the case of the plaintiff causing an immediate loss of consciousness and therefore the fall, is uncommon.

63. When the three aspects of this issue is put together, one is left with the following if the scenario put forward by Dr Yu for the defendant is to be accepted.  Firstly, a spontaneous haemorrhage or stroke for which there is no prior indication of hypertension in the plaintiff which is rare.  Secondly, a spontaneous haemorrhage in the caudate neucleus which is itself rare.  Thirdly, a spontaneous haemorrhage causing immediate loss of consciousness resulting in the plaintiff’s fall which is uncommon.

64. It should also be noted that all three of the above must take place in order for that scenario put forward by the plaintiff to materialize.

65. In conclusion where that depends on three circumstances to happen together all of which are shown to be either rare or uncommon occurrences, I cannot accept Dr Yu’s evidence that in the present case it is more likely that a stroke occurred which led the plaintiff to fall down to the bottom of the lift shaft.

66. For these reasons, I reject the evidence and opinion of Dr Yu that it was likely that a stroke occurred which led to the plaintiff falling.

67. I accept the evidence and opinion of Dr Huang that the head and brain injuries of the plaintiff was caused by trauma.

68. I should make it clear that in accepting the evidence and opinion of Dr Huang, that decision is not solely based on my rejecting the evidence and opinion of Dr Yu.

69. Not only was it based on the evidence given by Dr Huang, but that evidence of Dr Huang was further supported by the medical literature that where, as in the present case, the site of the intracerebral haemorrhage is contralateral to the site of the skull fracture, it is a common location involving fracture of the skull.  The medical literature is to be found in The Significance of traumatic haematoma in the region of the basal ganglia by Macpherson et al wherein it is stated (at page 30) :

“Skull fracture was detected radiographically in 28 of the 61 patients (46%) in comparable proportions in the isolated and associated groups.  In 24, the fracture involved the lateral aspect of the skull and of these the basal ganglia haematoma was contralateral to the fracture in 17 (71%), ipsilateral in six (25% and bilateral in one (4%).  A contralateral fracture was therefore significantly more common than an ipsilateral fracture.”

70. For the reasons given above, I find that the head injuries of the plaintiff in this case was caused by the trauma of the fall and was not as a result of a spontaneous haemorrhage from a stroke.

Liability

71. On the issue of liability, in so far as the facts go, I have no difficulty in accepting the findings come to by the Factory Inspector as contained in his Accident Report and also the evidence of Dr Rowlinson as to the state of things relevant to the safety of workers inside the lift shaft where the plaintiff was working at the time of the accident.

72. While it may be true that the evidence of Dr Rowlinson was somewhat general in its being critical of the defendant for the safety aspect, and is in that sense wider than being strictly relevant to this case of the accident to the plaintiff, those criticism of his are further supported by the 4^th defendant’s subsequent compliance with statutory requirements as to safety standards in getting the Suspension Notice lifted.

73. Moreover, none of the evidence of either the Factory Inspector’s Accident Report or Dr Rowlinson seriously challenged by the defendants.

74. The combined effect of that evidence can only point in the direction that all defendants were woefully negligent and in breach of their duties as occupiers towards the plaintiff in the occurrence of this accident in failing to provide him with the adequate sufficient or proper platforms with proper railings to work from at height and also failure to provide independent lifeline with safe and stable anchorage points to which he could attach his safety belt when having to move from place to place while working at a height of over two metres.  On the same facts the 1^st defendant will also be in breach of its duties as an employer and the 4^th defendant in breach of its statutory duty pleaded.

75. On such facts, I have no hesitation coming to the conclusion that all four defendants are liable to the plaintiff in this matter.

Contributory Negligence

76. The defendants rely on contributory negligence of the plaintiff.

77. It was submitted by the defendants that the plaintiff was a very experienced and skilled worker carrying out formwork and who had attended safety training.  It was further submitted that as such a skilled and experienced worker who would frequently be working at height doing formwork, the plaintiff would certainly have been aware of the risk and danger when carrying out his work in the lift shaft at the Site, yet he did nothing himself and failed to take reasonable care of his own safety.

78. I do not accept that submission by the defendants.

79. Given the findings made above, where the plaintiff was not provided with proper and safe work platform with guard rails to work on when working at height of over two metres, the defendants can hardly be heard to say that the plaintiff had failed to reasonably take care of his own safety.  In those circumstances, there is precious little that the plaintiff can do.  It would appear that the only option open to the plaintiff, if that be an option, would be to quit the job.

80. It is for this reason that courts have, time and again, said that it would be inappropriate to find contributory negligence in cases where defendants have been in breach of their statutory duty concerning safety.

81. In the present case, the breaches and failures of the defendants have been glaringly woeful and in such circumstances, I am not prepared to accede to the defendant’s suggestion as to contributory negligence of the plaintiff himself.

82. I would go as far as to say in this case that it lies ill in the mouth of the defendants to even suggest contributory negligence by the plaintiff.

Conclusion on Liability

83. Accordingly, for the reasons given, I find all the defendants to be fully liable to the plaintiff for this accident.

Quantum

84. I turn now to assess the quantum in this case.

Injuries and Treatment

85. When the plaintiff was found at the bottom of the lift shaft and the accident discovered, the plaintiff was found to be suffering from a severe head injury and unconscious.

86. Emergency services were called and the plaintiff taken by ambulance to Princess Margaret Hospital.  He was found to be deeply comatose having sustained a fracture of the skull with epidural haematoma, intracerebral bleeding and diffuse brain damage.

87. Two emergency neurosurgical operations were carried out. The first one for the evacuation of the epidural haematoma, followed by another surgical evacuation of left frontal tract haematoma the next day.

88. The plaintiff was put on tracheostomy for breathing and a Ryle’s tube inserted for feeding.

89. After two months, the plaintiff was moved to the infirmary unit of PMH in a vegetative state for long term care.  Significant recovery was not expected.

90. At the infirmary, the plaintiff did gradually recover consciousness, but remained severely demented, aphasic, devoid of cognitive power and weakened by spastic tetraplegia from the brain damage.  The plaintiff also had convulsive attacks requiring medication for it.

91. There was some slow but positive progress up to December 2003 when his condition deteriorated due to development of hydrocephalus which was managed conservatively.  The general neurological prognosis was poor.

92. He is now bed and wheelchair bound for life and wholly dependent on others for all activities of daily living.

93. The brain damage has also resulted in loss of urinary and bowel functions.

Pain suffering and loss of amenities

94. I take note of the video played at the trial which showed the plaintiff together with his family at the institution where the plaintiff is presently at, namely the Lai King infirmary of PMH.

95. While it does not actually show any direct response from the plaintiff, what it does show are 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.

96. In the almost total vegetative state that the plaintiff is in, general damages for pain, suffering and loss of amenities are assessed at $2,250,000.

Loss of society

97. Loss of Society is claimed by the plaintiff at $150,000.  That is the ceiling figure for such claim as provided for by statute.

98. In view of the fact that the plaintiff is not completely in a vegetative state, albeit that the difference in effect is only marginal, I will allow this claim but at the slightly reduced figure of $140,000.

Loss of pre-trial earnings

99. The pre-trial period since the accident to date is about 58½ months.

100. There is no dispute that the plaintiff, in the condition that he is in since the accident, has suffered full loss of earnings and will for the rest of his working life.

101. Before the accident, the plaintiff was a worker at construction sites doing formwork.  He was 54 years old at the time of the accident and is now 59.  Before the accident, he was earning a basic monthly salary of $19,950 plus bonus.  His daily wage at that time was $1,050 which probably puts him in the category of skilled labourer.  It would also suggest that the plaintiff was working on average about 19 days a month.

102. At the time of the trial, there is evidence from the defendants to say that the daily wage for a worker engaged in formwork has dropped to $700 per day.  However, the defendants are prepared to accept that the average monthly wages for the plaintiff at the time of trial, had it not been for the accident, would be about $15,960.  This would translate to over 19 days a month.

103. For the purpose of assessing damages under this head, I am prepared to round off the pre-accident monthly earnings of the plaintiff to a figure of $20,000 take account of the bonus.  For the same reason I will also round off the figure of $15,960 to $16,000.  The mean between those two rounded off figures give $18,000 which I will take to be the median monthly earnings of the plaintiff for the pre-trial period.

104. The loss of earnings therefore comes to $18,000 x 58½ months.  Adding on a further 5% to take account of loss of MPF for the same period gives the figure of $1,105,650 which is the loss of pre-trial earnings (loss of MPF included) assessed.

Loss of future earnings

105. I shall use $16,000 as the multiplicand for this head of damage.

106. As for the multiplier, the plaintiff is, at the time of trial, 59 years old.  Formwork at construction sites are heavy type of manual work and it is unlikely that the plaintiff will be able to continue with such work beyond the age of 65, perhaps even before that age although some workers doing formwork are known to be able to continue with such work beyond age 60, but not too long after that age.

107. A multiplier of 3 would be appropriate to calculate and assess the loss of future earnings in this case.  It would give a figure of $576,000.  Adding 5% to it for the loss of MPF will give $604,800.

Agreed special damages

108. Pre-trial special damages have been agreed between the parties as follows :

(a)	Medical expenses	$125,509
(b)	Transportation costs	$93,548
(c)	Miscellaneous expenses (including tonic food, medical and other consumables)	$110,000
(d)	Value of services of plaintiff’s family and costs of care	$707,382

109. Total agreed special damages therefore comes to $1,036,439 and will be allowed as agreed.

Cost of future care

110. The main dispute as to quantum between the parties concerns the future care of the plaintiff, in particular whether the claim for alternative accommodation on the basis that the plaintiff should receive home care, but with alternative accommodation to be provided (as contended for by the plaintiff), or whether he should remain in the present institution in Lai King (as advocated by the defendants).

111. Since the majority of the assessment of damages relating to future care of the plaintiff hinges upon the determination and resolution of this issue in dispute, I propose to deal directly with that issue first.

Home care or institutional care

112. Since the accident, the plaintiff was hospitalized at PMH and after treatment was transferred to the infirmary of PMH at Lai King for long term after care.  The plaintiff has since remained at the Lai King infirmary.

113. The home care suggested by the plaintiff involves the acquisition of alternative accommodations due to the fact that the present accommodation of the plaintiff’s family are unsuitable or inadequate to meet the needs of the plaintiff should he be cared for at home.

114. The case put forward by the plaintiff advocating home care for the plaintiff was on two footings.

115. Firstly, it was submitted that the family of the plaintiff have a strong desire for him to be cared for at home because they are a close knit family and enjoy each other’s company.  Though the members of his family visit the plaintiff regularly at Lai King, the need for them to travel to Lai King has caused considerable disruption to their lives.  If the plaintiff were to be returned home for home care, this would alleviate such difficulty.

116. The second basis was founded on the limitations in the institutional care received by the plaintiff at Lai King and stated by Flora Lee in her report.  These limitations are as follows :

(1)     restricted visiting hours;

(2)     napkin change by the ward staff takes place every four hours such that sacral area will be at high risk of developing sore;

(3)     plaintiff staying in a ward and can easily be affected by communicable disease and illness;

(4)     plaintiff’s inability to make request due to his impaired mentality and disability;

(5)     plaintiff suffering double incontinence will need to be bathed twice a week;

(6)     physiotherapist assessment is inadequate, the last physiotherapist visit was in January 2004; and

(7)     institutional care plans are rigid, care regime is scheduled according to manpower and resources available rather than being geared to the plaintiff’s condition.

117. However, what cannot be disputed, and indeed is common ground between the parties, is that for the last two years or more, the plaintiff has not had any chest infection, urinary tract infection, pressure sores, significant contractures or epileptic seizures.

118. The fact that the plaintiff has not suffered any of the above symptoms or complications, according to Dr Yu, “bespeaks the good care he receives (from the Lai King infirmary) at PMH.”

119. For this reason, Dr Yu takes the view that there is therefore no good medical reasons for changing the plaintiff from hospital care to home care.  Dr Yu further points out that if he returns home, the plaintiff would be disadvantaged by not having ready access to the medical services he now has at PMH.

120. On the other hand, Dr Huang for the plaintiff appears to attribute the fact that the plaintiff has been able to be free from any medical complications for the past two years or more by putting special emphasis upon a care assistant having been engaged for him since 2004 rather than to the services and facilities provided at the Lai King infirmary.  For that reason, Dr Huang advocates that “thus from a medical point of view, there is no reason why [the plaintiff] cannot be looked after in a home environment provided that he continues to be cared with the same level of care by a personal care assistant, and all the precautions I outlined in my previous communications are adhered to”.

121. That view of Dr Huang is however qualified by him saying that the risk involved in moving patients such as the plaintiffs back home should be conducted in stages so that the transition can be made and if it does not work out the patient may be returned to the institutional care.

122. In determining this issue, I have to take all of the above into consideration.

123. Moreover, I would also need to consider and to balance not only the benefit (if any) which there may be to the plaintiff to move him back home for home care as opposed to institutional care, but also whether such benefit can be said to be reasonable when balanced against the additional costs which the defendant will have to meet if home care is to be ordered.  That additional cost if home care is to be ordered is no small figure and goes into millions of dollars for both future nursing care at home as well as the cost of alternative accommodations.

124. The starting point must be that for the two years or more (since January 2004) the plaintiff has been free from all of the medical complications referred to by Dr Yu and accepted by Dr Huang.

125. From all the evidence before me in this case, I am unable to share the view expressed by Dr Huang that this was due solely to the fact that a personal care assistant had been engaged for the plaintiff since mid 2004.  If it is necessary for me to make a finding on this aspect, I find that the fact that the plaintiff has been complications free since January 2004 was due to a combination of both the services and facilities provided by the Lai King infirmary and also the fact that a personal care assistant had been engaged to look after the plaintiff during the daytime while in the Lai King infirmary together with the care of the plaintiff’s wife.

126. Moreover, the fact that the plaintiff has been complications free since January 2004, is itself very good evidence against the fears or limitations expressed by Flora Lee in her report as regards the fear of developing sores due to napkin change every four hours, the plaintiff contracting communicable disease being in a ward, and his needing to be bathed more than two times a week when suffering double incontinence.

127. Dealing more specifically with those limitations expressed by Flora Lee, I have no hesitation accepting the submission of Mr Clough that most if not all of those limitations or fears are unfounded in the case of this plaintiff.

128. Firstly, the plaintiff’s wife confirmed in her evidence that there is no problem about visiting hours at Lai King.  The hospital is flexible and relaxed about visiting and there is no restriction on numbers either.  Privacy at the bed is also possible by curtains being drawn.

129. Secondly, limitations as to napkin change has been seen to by the engagement of a care assistant and also the fact that bowel opening was done by suppository insertion every two to three days which was confirmed by Dr David Man in his evidence.

130. The risk of developing sores has been shown to be unfounded for the past two years and more.

131. Thirdly, it is misleading for Flora Lee to say that the plaintiff is staying in a ward shared by 36 patients.  While that may be strictly speaking true, the ward is in fact divided into separate cubicle rooms of six beds each and is a six-bedded spacious cubicle.

132. Fourthly, the plaintiff has not contracted any communicable disease for the more than two years now.

133. Fifthly, the inability of the plaintiff to communicate is not a limitation of the care or service provided at Lai King but results from his own injuries.

134. Sixthly, as for being bathed two times per week, the plaintiff is in fact bodily cleaned every day.  In addition to such body cleaning he is given a shower twice a week.

135. Seventhly, as regards physiotherapy, the evidence shows that the exercising given to the plaintiff by his wife and the care assistant is keeping the plaintiff in good health and trouble free.

136. Finally, as to care plans being rigid, Dr Huang accepts that there are differences between different institutions such that generalization cannot be applied across the board. In any event, the indications here are that a high quality of care has been provided by the Lai King infirmary to this plaintiff.  That fact and the engagement of a personal care assistant for the plaintiff has meant that any limitations there may be are adequately accounted for.

137. Given the good track record shown in the condition of this plaintiff being free from medical complications for more than the two and a half years past, there cannot really be any dispute to the opinion expressed by Dr Yu that there is no good medical reasons for changing the plaintiff from hospital care to home care.

138. This is particularly so where the qualification provided by Dr Huang to his view seems to suggest that (in moving the plaintiff back home, which has to be conducted in stages and if the transition does not work out, the plaintiff may then be returned to the institutional care) there is no or little guarantee that the home care advocated will be as successful or beneficial as the present regime.

139. Furthermore, if that qualification suggests that it is no more than a trial to see that home care can work out, then it is met with the question why in such circumstances should the defendant have to be made to pay a not insubstantial amount for alternative accommodation and future home care expenses when there is the possibility that the plaintiff may ultimately end up back in institutional care, and can that be reasonable.

140. When all the above matters have to be put in the balance, I have little hesitation in coming to the conclusion that it must be reasonable for the plaintiff to remain at Lai King and from which he is receiving reasonable and adequate care in the condition that he is in, perhaps coupled with the assistance he is getting from the care assistant and also his wife.

141. Turning now to deal with the inconvenience to the members of the plaintiff’s family in having to travel to Lai King to visit him, having come to the conclusion that there are good reasons not to move the plaintiff back home for home care, the first point that should be noted on this issue is that the consideration should be based on the reasonable benefit and adequacy of care to the plaintiff himself for his injuries and/or the condition he is in, rather than to the inconvenience to his family.  Such inconvenience to the family, while it may be one factor to be taken into consideration in any given case, should not of itself be the deciding factor or criteria.

142. In this case, having accepted that the opinion of Dr Yu that there are no good medical reasons for moving the plaintiff away from the present regime in place, the inconvenience to the family members will not be such a factor as to detract from that conclusion.

143. In any event the inconvenience to the family, which Mr Clough for the defendants accept as being present, has been fairly and properly dealt with by him in suggesting additional travelling expenses as well as additional expenses for the family to relocate their home closer to Lai King such that the disruption to them will be minimized.  That proposed solution by Mr Clough is one which greatly appeals to me and which I am prepared to adopt in lieu of the alternative accommodation for home care suggested by the plaintiff and which will be dealt with later in this judgment.

144. For the reasons given above, I am not persuaded by the plaintiff that I should assess damages in this case on the basis of home care (as opposed to institutional care) for the plaintiff and I reject the plaintiff’s submissions on that issue.

Future expenses

145. In assessing future expenses, it is agreed between the parties that the life expectancy of this plaintiff is 10 years.

146. There is however a dispute between them as to the multiplier to be adopted for the purpose of calculating the claim for future expenses.

147. In light of the agreed life expectancy being 10 years in this case, a multiplier of 7 would be appropriate, in my view, to calculate the claim for future expenses.

Alternative accommodation

148. Having rejected the plaintiff’s submission for home care as opposed to institutional care, the plaintiff’s claim for alternative accommodation would, in the normal course of event fall away as well.

149. However, in this case, counsel for the defendants, in persuading me to hold that institutional care would be appropriate for this plaintiff, accepts that there is some inconvenience caused to the family members of the plaintiff in visiting him at the Lai King infirmary.  He suggests that such inconvenience can be compensated for by making an award of $60,000 per annum for the plaintiff’s family to relocate the family home to either Mei Foo or the vicinity of the Lai King infirmary as well as an additional award of $20,800 per annum for extra taxi fares.

150. That is a suggestion which appeals to me.

151. In the absence of any alternative claim put forward by the plaintiff, I will adopt those figures suggested by counsel for the defendant and using the multiplier of 7, it gives a final figure of $565,600, which I will round off to $570,000.

152. For the plaintiff to remain at the Lai King infirmary, the hospital fees come to $30,000 per year.  Using a multiplier of 7 the future hospital fees are assessed at $210,000.

153. A care assistant has already been engaged to assist in looking after the plaintiff.  The yearly expenses of such a care assistant is $134,320.  Applying a multiplier of 7, the future cost of the care assistant is assessed at $940,240.

154. The wife has also assisted in taking care of the plaintiff most of the time.  In this respect, it is not disputed that a domestic helper needs to be engaged to do the housework while the wife is at the hospital caring for the plaintiff.  The cost of such a domestic helper comes to $41,400 per year.  Again using a multiplier of 7, the future costs of the domestic helper is assessed at $289,800.

155. In so far as transportation costs is concerned, the plaintiff has indicated at the trial that the claim for a motor car will not be pursued.  Instead the alternative claim for future transportation costs is put at $3,000 per month.  That claim for transportation was made on the basis of the plaintiff being taken home for home care.

156. Although the plaintiff’s case for home care having now been rejected, the defendants are agreeable to a yearly amount of $12,000 as being the future travelling costs for taking the plaintiff outside of the hospital for outside visits on occasions.  Using a multiplier of 7, I assess the future transportation costs to be $84,000.

157. There is agreement between the parties that future counselling costs at $45,000 be awarded, and the same will be assessed accordingly.

158. As for the plaintiff’s claim for special equipment, the claim as pleaded in the Updated Revised Statement of Damages encompass 14 items of special equipment.

159. In view of the fact that I have rejected the plaintiff’s claim for home care as opposed to institutional care, items 1, 2, 3 and 4, being air mattress, commode shower chair and hospital bed with electric hoist should no longer be necessary items since they will be provided by the hospital.  Likewise the last two items, being plastic urinal and air conditioner will also be provided by the hospital.

160. The other remaining items will be allowed and are assessed at a global sum of $90,000.

161. Dealing lastly with the claim for Miscellaneous Future Recurring Expenses pleaded in the Update Revised Statement of Damages, in respect of all the items particularized therein, a global multiplicand of $12,800 will be assessed and using a multiplier of 7 gives the figure of $89,600 which I will round off to $90,000.

162. Total future expenses therefore comes to $2,319,040.

Interests

163. Interests at 2% will be awarded for general damages for pain suffering and loss of amenities from the date of the Writ.

164. Interests at 5.5%, being half judgment rate, will be awarded for all pre-trial and special damages from the date of the accident.

Employee’s compensation payment

165. Employee’s compensation in the amount of $2,350,070 having already been received by the plaintiff, that amount will be deducted from the final figure assessed.

Summary of amounts assessed

Decision

167. Accordingly, there will be judgment to the plaintiff in the sum of $5,786,316.

168. In view of the fact that the plaintiff is mentally incapacitated and is therefore suing by his next friend, the judgment sum is to be paid into court by the defendants pending application by the plaintiff for its disposal as, for instance, the setting up of a committee under the Mental Health Ordinance.  The defendants are to pay into court the judgment sum within 14 days.

Costs

169. There will be an order nisi that the defendants pay the plaintiff his costs of this action to be taxed if not agreed.

170. The plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations.