CHAN YUET LUI REBECCA v. THE RITZ-CARLTON LTD. AND OTHERS

HCPI 658/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 658 OF 2000

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ASSESSMENT OF DAMAGES OF THE PLAINTIFF

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1. By writ issued on 30 May 2000 the plaintiff, who was born on 7th March 1970 and who is now aged 31, claims damages for the injuries which she suffered on 9th March 1998 when she was struck by a motor vehicle whilst she was walking along the pavement outside the Police Headquarters in Queensway.

2. Liability in this case has already been determined in favour of the plaintiff against the 3rd defendant the insurer of the 2nd defendant. This is now the assessment of the plaintiff's damages.

3. At the hearing of the assessment the plaintiff was represented by Mr Ashor Sakhrani of counsel and the 3rd defendant was represented by Ms Josephine Pinto of counsel. The 2nd defendant was not represented and did not appear. The 1st defendant is no longer concerned in these proceedings.

4. I say at the outset that I have been greatly assisted by counsel in this matter both in oral argument and in written submission.

The plaintiff's injuries (general)

5. Immediately prior to the accident the plaintiff, (who was then an accountant aged 28, single, and living with her parents and siblings in public housing accommodation) enjoyed an active social and sporting life. She had a boy friend whom she planned to marry in due course and, insofar as her employment was concerned, she had professional ambitions, one of which was to become a chartered accountant.

6. As a direct consequence of the accident the plaintiff has been confined to a wheelchair for the rest of her life. She has lost her employment and her professional prospects; she can no longer participate in her previous social and sporting activities, and her marriage plans are gone, as are her hopes of one day starting a family.

7. In the accident the plaintiff suffered a head injury with diffuse axonal injury and she was rendered unconscious. On admission to hospital her Glasgow Coma Scale was 11/15. She suffered a fracture dislocation of T8/9 with paraplegia, fracture of the right femur, laceration of the left knee, and bilateral haemothorax. The fracture dislocation was treated by open reduction and internal fixation. The fractured femur was treated by internal fixation and the haemothorax by internal chest drainage. She was nursed in the intensive care unit for 6 days during which time she required intracranial pressure monitoring and mechanically-assisted ventilation. She was subsequently found to have bilateral vocal cord palsy and this was treated conservatively. She was hospitalised for 9 months and discharged home with a wheelchair. Once in this period she had to be treated for a breakdown of one of the wounds. She has had about 5 episodes of urinary tract infection.

8. The plaintiff's condition has remained substantially unchanged for the past 2 years. She is completely paraplegic with no volitional activity in any of her leg muscles. There are frequent involuntary spasms in the legs and there is constant pulling/stretching discomfort in both legs, extending proximally into her back. There is intermittent pain in her back. Recently she had some external rotation of the left hip. She has a scar over her scalp from the right frontal burr-hole and a long midline surgical scar over the thoracic region.

9. The plaintiff suffers an adjustment disorder with depressed mood but there is some disagreement as to whether she suffers Post-Concussional Syndrome.

Orthopaedic and Neurological Assessment

10. The Plaintiff suffers from the neurological consequences of the fracture dislocation of T8 and T9 vertebrae. The lower end of the spinal cord (from T8 to the sacral segments) and the spinal roots arising from this part of the spinal cord (cauda equina) are damaged. As a result, she experiences complete paraplegia, sensory disturbance below the groin and sphincter dysfunction.

11. The Plaintiff is still left with mild cognitive impairment as a result of the head injury.

12. No further treatment will be able to reverse these neurological impairments which are likely to be permanent.

13. The common late physical complications of paraplegia from a lower thoracic spine fracture dislocation include the following:

a) flexion contracture of the joints in the paralysed portion of the limbs (contracted joint in the flexed position).

b) spontaneous flexor spasms

c) pressure sores and skin eczema

d) urinary tract infection

e) weak or poor balance, and pain at the fracture site of the spine.

14. Flexion contracture of the lower limb joints impairs one's ability to stay comfortably in the wheelchair or to stay in a sitting position in bed. In the younger age group, it might decrease the capacity or preclude one from using the ambulatory type of orthosis.

15. The Plaintiff suffers mild contractures at the knees and ankles and frequent involuntary muscle spasms in both lower extremities. All modalities of sensation are absent below the T8 dermatomes bilaterally.

16. The neurologists are in agreement as follows:

(1) Further improvement in the Plaintiffs neurological functions is not expected.

(2) Patients with paraplegia are prone to a host of medical complications, chief of which are urinary sepsis and pressure sores. At present, the Plaintiff's medical condition is stable and well maintained. She has not had any pressure sores or urinary sepsis since returning home. Nevertheless, she ought to have the following medical care with a view to minimize the risk of complications:

(a) Medical consultation every 3 months by a neurologist, a neurosurgeon or an orthopedic surgeon

and (b) Urological consultation

(3) As her RGO no longer fits her properly, it needs to be revised at intervals. This should preferrably be arranged at her follow-up evaluation at the orthopedic clinic of the Duchess of Kent Children Hospital.

(4) There is no indication for regular physiotherapy or occupational therapy.

The neurologists are in slight disagreement in their assessment of the incidence of post traumatic syringomyelia.

Urological Assessment

17. Examination of the Plaintiff revealed that:

(a) The urinary system probably was of the balanced neurogenic bladder type. This has recently changed into the more spastic - upper motor neuron type. She has no voluntary voiding activities and requires the use of the intermittent catheterization program.

(b) There have been urinary tract infections related to the above.

(c) The upper tracts have not been compromised.

(d) Constipation and rectal incontinence requires the use of laxatives. The situation is exacerbated by the use of Ditropan; and

(e) Sexual Dysfunction.

18. The urologic disability secondary to her injury will be the requirement to use self intermittent catheterization, as well as the possibility of subsequent bladder and upper tract changes. These would include uninhibited contractions, which lead to incontinence and detrusor hypertrophy. These can also affect the upper tracts with hydroureter and/or hydronephrosis. Renal damage and stone formation are possible results of these conditions.

19. The Plaintiff's conditions are permanent. It is unlikely that her condition will improve. Rather, there is a risk of deterioration of the upper tracts from the uninhibited detrusor contractions and/or detrusor-sphincter dysynergia. The treatment objective is to prevent further deterioration of the urinary tract (from stones, infections and/or obstructions).

20. The schedule recommended for urologic follow-up is as follows:

* Physician's visit every 3 months;

* Urinalysis and Urine Culture every 3 months;

* Ultrasound of the kidneys and bladder every year;

* Serum creatinine every 6 months;

* Urodynamics every 2 years;

* Cystoscopy every 2 years; and

* Renal Scan every 2 years.

Psychiatric Assessment

21. Dr Chung See Yuen who examined the Plaintiff in 1999 and again, jointly with Dr Singer, in May 2001 concluded that her memory function was intact but that she was suffering from two mental disorders as follows:

(1) Adjustment disorder with mixed anxiety and depressive mood--- The mental disorder is characterised by the development of emotional or behavioural symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s). The symptoms that she is having consist of depressed mood, bad temper, feelings of inability to cope, feelings of worthlessness, low self-esteem, lack of motivation, and anxiety when she is in the street or travelling in a motor vehicle. The disorder is directly caused by the trauma of the accident, the disability and the resultant psychosocial problems.

(2) Postconcussional disorder --- The disorder is an acquired impairment in cognitive functioning, accompanied by specific neurobehavioral symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion. She is displaying some symptoms of postconcussional disorder consisting of headache, slow response and forgetfulness. The disorder is directly caused by the head trauma. The disorder is probably persistent. The disorder is mild.

22. Dr Chung also concluded that the Plaintiff requires psychotherapy. He suggested 12 one hour sessions related to the trauma of the accident and her acceptance of her disability, and 30 one hour sessions in the event of her suffering from the likely complications of paraplegia and her interaction with other people.

23. Dr Chung also recommends family therapy (10 one hour sessions) for the Plaintiffs parents and siblings who require counseling on how to alleviate their emotional disturbances and who, having received that therapy, will be better able to attend to the Plaintiff's needs.

24. Dr Singer agrees with Dr Chung that the Plaintiff is suffering from the adjustment disorder but he disagrees concerning the postconcussional disorder. He too recommends psychotherapy for the Plaintiff and her family but is of the opinion that fewer sessions are required.

Physiotherapy and Occupational Therapy Assessment

25. The assessment of David K W Siu is as follows:

(a) The Plaintiff suffers from paralysis of her lower limbs and is unable to walk. Although she is able to practise walking with the RGO and a walking frame for short distances, it is not a practical way of ambulation as she may fall and it tires her out easily. For all practical purposes, she has to rely on her wheelchair for ambulation.

(b) She has suffered a loss of sensation from below her waist level.

(c) She has spasms in her lower limbs. She is often wakened by the spasms during her sleep.

(d) She cannot pass urine voluntarily. Intermittent catheterization has to be carried out every four hours. There is leakage of urine in between catheterization and she has to wear a diaper. This causes a great deal of difficulty and embarrassment to her social life. It is also a significant obstacle to her employability.

(e) Contracture of the Achilles' tendon in her ankles. This leads to restricted flexibility of the ankle joints.

26. The quality of her life from now on will be determined by the relative independence and mobility level she achieves despite her disabilities. In concrete terms, her activities of daily living will depend on her wheelchair skills, her transferring skills, and a pair of intact upper limbs. These crucial factors are based on more fundamental elements such as the strength and flexibility of the upper limb musculature and soft tissues; sitting balance capacity, and flexibility in the paralysed lower limbs.

27. Physiotherapy is necessary for the maintenance of her physical wellbeing and relative independence despite her disabilities. The objectives are:

(1) To correct the contracture of the Achilles' tendon in her ankles and to maintain the flexibility of her paralysed lower limbs.

(2) To supervise her practice in walking exercise with the RGO. This is good exercise for her and is also good for her morale.

(3) To maintain the strength and flexibility in her upper limb muscles and joints.

(4) To improve her balance and transfer skills and enhance her safety in her activities of daily living.

28. Mr Siu recommends a physiotherapy programme as follows:

(1) Three sessions a week for 4 weeks;

(2) Weekly sessions for 12 weeks; and

(3) Monthly sessions for the rest of her life.

29. Long-term maintenance therapy is necessary to prevent the deterioration of her physical condition and to maintain her relative independence in her activities of daily living. This is especially relevant when she gets older with the adverse effects of ageing setting in on top of her disabilities.

30. Home visit physiotherapy is more suitable in view of her wheelchair bound status.

31. Stephen K S Wong essentially agrees with Mr David Siu in his assessment and in particular expresses the opinion that the Plaintiff requires physiotherapy to preserve her upper limb function and to prevent contractures.

32. However, if I have understood his opinion correctly, much of the beneficial effect of physiotherapy can be achieved from its administration not by (or only by) a physiotherapist but by those who care for the Plaintiff i.e. her family and home helper and that they require instruction (presumably from a physiotherapist) in the appropriate exercises designed for the Plaintiff's benefit.

33. Indeed he puts it this way:

"As the Plaintiff will be staying in her home and will be taken care of mainly by her parents and helper, the main goal for physiotherapy is to train the helper in those simple but essential physiotherapy procedures to help the Plaintiff. These procedures include passive movements to the joints, stretching to the essential soft tissues, and simple active routine home strengthening exercises.

To ensure that the helpers learn the home routine procedures well and correctly, they should be trained by the physiotherapist on a daily basis for one week at his clinic. The physiotherapist should also conduct home visits to observe how the helpers perform at the Plaintiff's home, and provide on-site training as well as corrections when necessary. The frequency of home visit after the training of the helpers in the clinic could be once a week for 3 weeks, followed by once every two week for 2 months.

The Physiotherapist's visit and training could then be reduced to once a month for 3 months and discontinued if the helper was performing her duty correctly. In this aspect I will disagree with the opinion by Mr Siu David that the Plaintiff requires monthly sessions of physiotherapy for the rest of her life."

34. Mr Wong then adds the caveat that, of course, any replacement helper would also have to undergo the training process.

Pain Suffering and Loss of Amenities

35. The extent of the injuries and disabilities suffered by the plaintiff are not in dispute. What is in dispute is whether the award under this head should be $1.7 million or $1.5 million and I have heard a great deal of reasoned argument from counsel about this. I am persuaded that by reason of factors in this case which aggravate the 'disaster', and which include the multiple injuries suffered; the psychiatric disability; the lost marriage and child bearing opportunities; the risk of future neurological and urological complications and the plaintiff's young age a reasonable amount of damages under this head would be $1.7 million and I award that sum: $1,700,000.00.

Special Damages (Pre-trial)

36. The following items of special damages pre-trial as well as the amount claimed for each item are not in dispute between the parties:-

	$
(a) Medical expenses	20,700.00
(b) Transport costs	73,054.00
(c) Miscellaneous expenses	662,555.00
(d) Value of mother's services	337,500.00
	1,093,809.00

37. I am satisfied on the evidence before me that those amounts have been expended and are reasonable and they will be allowed.

38. In the pleadings the plaintiff also claimed $1,133,243.00 in respect of loss of earnings up to the date of this assessment. However Mr Sakhrani acknowledged that this was in error and based upon the mistaken premise that by the time of assessment the plaintiff would have been earning $30,000.00 per month.

39. The 3rd defendant's answer to that was that but for the accident the plaintiff's monthly salary at the date of assessment would have been $18,416.00. It was not in dispute that at the time of the accident the plaintiff was earning $16,000.00 per month exclusive of an annual bonus equivalent to one month's salary.

40. In my judgment, and upon the evidence before me, I am quite satisfied that given the plaintiff's additional qualifications attained not long prior to the accident and the additional experience which she would brought to her employment by the time of this assessment, she would have been earning a basic monthly salary of no less than $19,000.00

41. That being so, the calculations for the past loss of earnings are as follows:-

$16,000 x 13÷12 = $17,333
$19,000 x 13÷12 = $20,583
[$17,333 - $563(tax) + $20,583 - $1,094(Tax)]÷2 x 45
	= $815,828.00
Add Loss of MPF
$19,000 x 12 x 5%	= $11,400.00
	$827,228.00
Less sick leave pay	= $69,332.00
	$757,896.00

42. I award the sum of $757,896.00 in respect of loss of earnings up to the date of this assessment and thus the total award of pre-trial damages is:-

$1,093,809.00
$ 757,896.00
$ 1,851,705.00
============

Future Loss

Loss of Future Earnings

43. In respect of this head of damages the plaintiff pleads a multiplier of 17 to which the 3rd defendant responds with one of 15. Once again I have had the benefit of careful and reasoned argument, in support of their submissions from counsel, and I accept, of course, that it is not a matter of finding a balance between two competing claims but rather a fair judicial assessment based upon many factors which include the tables of personal injury and fatal accident multipliers between 1997 and 2001 and the life expectancy of the plaintiff which is assessed at between 32.7 to 36.7 years.

44. In seeking the appropriate multiplier for future loss of earnings (and indeed that for future expenses) I respectfully adopt the approach of Suffiad J at page 8 of his assessment in Lee Suk Yi v National Insurance Co. Ltd (HCPI No. 439 of 2000).

45. In my view the appropriate multiplier for future loss of earnings in the particular circumstances of this case is one of 16 and that is the multiplier which I apply.

46. A good deal of the evidence, of the argument and of the submissions before me concerned the likelihood - or the probability - of the plaintiff acquiring the status and, consequently, the earning capacity of a 'chartered' accountant.

47. In the course of that evidence and argument I was presented with (undoubtedly honest) expressions of optimism on the part of the plaintiff; statistics as to the likelihood of qualification given the changes to the regime permitting such qualification and evidence as to the plaintiff's past endeavours with that ultimate aim of such qualification in mind. I have been invited to consider, in terms of percentages, the chances of such qualification given the evidence of past endeavours.

48. I do not doubt for one moment the diligence and ambition of the plaintiff but, given all that I have been told in evidence, I find (albeit with no little reluctance) that the plaintiff's prospects of so qualifying as a 'chartered' accountant were remote to the point of being 'insignificant' (as that term was used in the judgment of Otton LJ in Doyle v Wallace [1998] C of A (Civil Division) 142 SJ LB 196) and I hope that it is quite apparent that I intend no discourtesy to the plaintiff by that, because if endeavour was the sole criterion for such qualification I am in no doubt whatsoever, (upon her evidence which I accept without reservation), that she would have qualified as a 'chartered' accountant with distinction.

49. Having reached that conclusion upon the evidence, I calculate the plaintiffs damages under this head as follows:

$20,583 - $1,094 (tax) x 12 x 16	=	$3,741,888.00
Add MPF : $3,741,888 x 5%	=	$187,094.00
	=	$3,928,982.00
		============

Loss of Future Advancement in Career

50. In respect of this head of damages the plaintiff claims either the sum of $250,000.00 or a sum equivalent to a percentage of lost income based upon an estimated percentage (put at 35%) of lost chances (see Anderson v Davis and Anor [1992] PIQRQ 87 and Doyle v Wallace (supra)).

51. Ms Pinto responds to this claim by submitting that it is based wholly upon speculation and, given that the plaintiff is to be compensated for loss of earnings as an Accounting Supervisor, she has not suffered any loss of chance of promotion to that post.

52. Whilst I fully understand that argument it does, with respect, somewhat miss the point and I agree with Mr Sakhrani that to make no award under this head would be to under compensate the plaintiff in all of the circumstances of the case, and that it would be unjust. I am not however prepared to travel along the 'estimated percentage of lost chances' route. That would involve pure guess work on my part.

53. In my view the appropriate award is one of $250,000.00 and that is the award that I make.

Cost of Future Medical and Nursing Care; of a domestic helper and a case manager

54. In respect of this claim I am satisfied upon careful consideration in the light of the arguments of counsel, and what I have said is paragraphs 43 and 44 above, that the appropriate multiplier is 20.

55. That being so, and the following multicands not being in dispute, I make awards in respect of the following items:

Urological treatment
$12,500.00 x 20	=	$ 250,000.00
Domestic Helper
$85,000.00 x 20	=	$1,700,000.00
Case Manager
$4,800.00 x 20	=	$ 96,000.00
	=	$2,046,000.00
		=========

56. Items under this head which are disputed beyond the question of the multiplier are psychological counselling; family counselling; physiotherapy; occupational therapy; medical consultation and medication; hospitalisation and nursing care - and I shall now deal with each one of these in turn given the disagreements concerning the needs of the plaintiff over a prolonged period and doing the best that I can.

Psychological counselling

The claim (based upon Dr Chung's report) is for $105,000.00 and the offer (based upon Dr Singer's assessment) is $48,000.00. I allow the claim of $105,000.00 in full it being, in my view, fully justified and reasonable.

Family counselling

The claim is for $25,000.00 and the offer is $12,500.00. I allow $12,500.00 accepting, as I do, Dr Singer's assessment that the plaintiff's family will require 5 sessions at $2,500.00 per session.

Physiotherapy and occupational therapy

This is recommended strongly by the physiotherapists and for reasons which I, with the greatest respect, would have thought were obvious. Whilst the neurologists do not share that view and whilst the physiotherapists have different views as to how to achieve the same aims, I allow the sum of $24,000.00 for the initial therapy and (given the uncertainties expressed in the evidence before me) the sum of $5,000.00 applying a multiplier of 20 in respect of life time therapy. The total sum allowed for physiotherapy is - $24,000.00 + $100,000.00 = $124,000.00.

The occupational therapy evaluation report recommends monthly therapy for the plaintiff's life time and I accept that recommendation. The cost of this is estimated at between $800.00 - $1,000.00 per hour for treatment at a private clinic and between $1,000.00 - $2,000.00 per hour at home.

In my judgment a reasonable multiplicand is $12,000.00 which over 20 years amounts to $240,000.00

The total then allowed for physiotherapy and occupational therapy is:

124,000.00 + $240,000.00 = $364,000.00

Medical consultation and medication

The sum claimed is $105,600.00 and the sum offered is $43,200.00 based upon a multiplier of 18 and upon the recommendations of the neurologists that the annual costs will be $2,400.00. I award $48,000.00 accepting, as I do, the evidence of the neurologists but applying a multiplier of 20.

Hospitalization and nursing care

In respect of hospitalisation a multiplicand of $15,000.00 is claimed and agreed. However the plaintiff seeks that sum applying a full multiplier whilst the 3rd defendant, relying upon the joint assessment of the neurologists, would apply a multiplier of 4. To my mind that is too conservative and I apply a multiplier of 10 giving a total of $150,000.00.

As to nursing care the difference between the parties lies essentially upon the assessed need of full time care at a later stage. On the evidence before me such need has not been made out. For nursing care (a Chinese care assistant part time) I award $59,701.00 x 20 = $1,194,020.00.

The total award for hospitalization and nursing care is $150,000.00 + $1,194,020.00 = $1,344,020.00.

The total award in respect of the cost of future Medical and Nursing care is as follows:-

	$
Urological Treatment	250,000.00
Domestic Helper	1,700,000.00
Case Manager	96,000.00
Psychological Counselling	105,000.00
Family Counselling	12,500.00
Physiotherapy and Occupational Therapy	364,000.00
Medical Consultation and Medication	48,000.00
Hospitalization and Nursing Care	1,344,020.00
	$ 3,919,520.00
	===========

Future Transport costs

57. I heard a good deal of argument about this matter. The plaintiff claims either a car with its associated expenses in the total sum of $1,559,222.00 or a sum, in respect of extra travelling costs, of $3,000.00 per month.

58. The 3rd defendant argues that a car is not 'reasonably necessary' to meet the plaintiff's travel needs but is prepared to agree a sum in respect of extra travelling costs of $300.00 per week.

59. Suffice it, I think, for me to say that whilst the provision of a car to the plaintiff would be extremely beneficial to her in many ways, such provision has not been justified before me. The plaintiff has no driving licence of any kind and is, not surprisingly, in fear of traffic.

60. In my judgment her reasonable needs, given all that I have been told both in evidence and in argument, can properly and entirely justifiably be met by a monthly allowance under this head of $3,000.00

61. Accordingly I award to her the sum of $3,000 x 20 x 12 = $720,000.00

Costs of Future Special Equipment

62. There are 32 items here only 3 of which are agreed. Some of the remaining items are not agreed because the specialists suggest somewhat cheaper items; some because it is said that there is no evidence to support them and some because it is said that the plaintiff would have expended money upon them regardless of the accident. I do not propose to deal with each and every one of the contested items. Suffice it to say that I have considered each one and have made the awards which appear in the first schedule which in my view are justified on the evidence as being reasonable. The only item which I will refer to specifically is the electric wheelchair and its associated expense (items 29-32). The 3rd defendant rejects this claim upon the basis that the domestic helper (in respect of whom an award is being made) can propel the plaintiff in her present wheelchair over difficult as well as normal terrain. As I said during the hearing of this matter that is not, to my mind, an attractive argument in all the circumstances of this case. I am in no doubt that the provision of an electric wheelchair will contribute to the general welfare of, and will be beneficial to, the plaintiff for many reasons which I should have thought were quite apparent. The claims in respect of it and its associated items are accordingly allowed as being both necessary and reasonable.

The total sum which I allow is $1,349,141.00

Miscellaneous Future Recurring Expenses

63. There are 15 items of miscellaneous future recurring expenses which are claimed. The multiplicands of items 1, 7, 8, 9, 10, 11 and 15 are agreed. Items 2, 3, 4, 5, 6, 12,13 and 14 are not agreed either because lesser sums have been put forward by the specialists or because they are said to be unnecessary. I will deal shortly only with the latter 8 items as follows:

Item 2, Future DIY expenses I do not accept that the plaintiff would, in any event, have hired a 'handyman'.

Item 3, Extra cost of holiday This claim (adjusted by the multiplier) is entirely reasonable and is allowed.

Item 4, Extra electricity for A/C ) These claims (adjusted by the

Item 5, Extra washing powder ) appropriate multiplier) are entirely

Item 6, Extra tissues and toilet rolls ) reasonable and are allowed.

Item 12 Tubes K-Y Jelly ) These claims (adjusted by the

Item 13 Antrseptant disinjectant ) appropriate multiplier) are entirely

Item 14 Skin ointment ) reasonable and are allowed.

The total sum which I allow (as shown in the 2nd schedule) is $681,460.00

Claim for Alternative Accomodation and Related Expenses

64. I again have been presented with a great deal of evidence and argument concerning this matter. The fact is that the plaintiff has moved from living with her parents and siblings in public housing accommodation into private accommodation in Whampoa Garden which is much more suited to her needs.

65. The annual rent of these premises is $207,600.00 and the plaintiff (applying a multiplier of 22) claims the sum of $4,567,200.00. The 3rd defendant counters this by saying, if I have understood the argument correctly, that the plaintiff should purchase new premises at a cost of $4,400,000.00 and that the cost of the rental of the pre-accident premises (applying a multiplier of 18) of $432,000.00 should be deducted from that sum; and that the annual cost of providing the resulting capital sum of $3,968,000.00 at 2% interest over the plaintiff's lifetime is the sum which the 3rd defendant should pay.

66. With the greatest respect, I find myself unable to agree with that argument.

67. The fact of the matter is that there is no saving, (and therefore there should be no deduction in respect of it), because the rent for the old premises still has to be paid by the plaintiff's parents and siblings and, applying the multiplier which I consider to be appropriate of 20, the cost of renting the premises at Whampoa Garden is still cheaper than buying it or its equivalent.

68. Ms Pinto then submitted that whatever figure I assess as being appropriate under this head I should deduct from it (or further deduct from it) what is, in truth, a notional sum based upon what the plaintiff's contribution would have been had the accident not occurred; had she become married and had she contributed, say, $6,000.00 per month out of her income for the provision of the matrimonial home. I just add here that that figure of $6,000 per month derived from an estimate, if not a guess, from the plaintiff in her evidence, based upon the assumptions that there had been no accident; that she had married a man earning $30,000 per month; that they had chosen to live in private rented accommodation and that they had a family but she continued to work (employing a helper to look after the child/children).

69. In my view, whilst I accept (again doing the very best that I can, based wholly and necessarily upon conjecture) that some allowance should be set off against the award in respect of future loss of earnings to reflect an estimated future contribution towards her accommodation, the sum of $6,000.00 is too speculative and far too high.

70. Having given this matter, and the authorities cited to me, the most anxious consideration it is my view that an appropriate sum to be deducted from my award in respect of this head is $2,000.00 per month i.e. $2,000.00 x 12 x 20 = $480,000.00

71. Taking the monthly rent of the new accommodation at $17,300.00 and applying a multiplier of 20 the calculation is as follows:-

$17,300.00 x 12 x 20 (- $480,000.00) = $3,672,000.00 and that is the sum which I award under this head, adding to it the agreed cost of alteration in the sum of $384,325.00; the legal costs of the tenancy agreement ($1,820.00 x 10 = $18,200.00); the agency fees ($11,500.00 x 10 =$115,000.00) and 50% of the stamp duty ($693.00 x 10 = $6,930.00).

72. The total award then in respect of this item of the claim is as follows:

$
3,672,000.00
384,325.00
18,200.00
115,000.00
6,930.00
$4,196,455.00
=========

Cost of Fund Manager

73. I do not agree with the contention made on behalf of the 3rd defendant that because the plaintiff was an accountant she should be able to manage her own damages. In my judgment the employment of such a manager is not only reasonably necessary but it is essential. Adopting 10% of the assessed future earnings as being the appropriate sum under this head the award I make is $392,898.00.

Interest

74. Interest will be awarded (as agreed) on general damages for pain suffering and loss of amenities at 2% per annum from the date of the writ. Interest on pre-trial special damages will be awarded at 4.91% from the date of the accident.

Summary of Assessment

75. $

Accordingly the plaintiff's total damages inclusive of interest is assessed at $19,383,041.00

Costs

76. There will be a costs order nisi that the costs of the assessment in relation to the plaintiff will be borne by the 3rd defendant, to be taxed on a party and party basis if not agreed. There will also be an order for the plaintiff's cost to be taxed under the Legal Aid provisions.