LEUNG YUN KEUNG v. CITYBASE PROPERTY MANAGEMENT LTD

HCPI 457/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 457 OF 2008

_________________________

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J U D G M E N T

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(I)  BACKGROUND

1.  On 12 April 2006, the 65-year-old Mr. Leung sustained injuries to his right eye when his face hit against a rolling shutter gate on his way to the swimming pool of the estate in which he resided.

2.  He brought the present action against the Defendant, the management company of the estate, for damages in respect of the eye injuries he has sustained.

3.  Interlocutory judgment was entered by default when no notice of intention to defend had been filed.  After the Defendant’s unsuccessful application and the subsequent appeal to set aside the default judgment, I now asked to assess the damages Mr. Leung has suffered.

(II)  INJURIES AND TREATMENT

4.  After the accident, Mr. Leung was taken by ambulance to the Accident and Emergency Department of the Princess Margaret Hospital and further transferred to Caritas Medical Centre (“Caritas”).

5.  As recorded in Caritas’ medical report, Mr. Leung’s right eye had proptosis (outward bulging), chemosis (swelling of the conjunctiva), deformed globe and vitreous haemorrhage.  Posterior rupture of eyeball was suspected.

6.  Mr. Leung declined operation in Caritas.  The next day on 13 April 2006 an operation was performed by Dr. Jon (privately at Baptist Hospital.  These procedures were performed during the operation:  lensectomy (removal of crystalline lens), posterior vitrectomy (removal of vitreous), blood clot removal, retinal detachment repair, endolaser and silicone oil infusion[1].

7.  Mr. Leung underwent a second operation on 29 September 2006.

8.  For the purpose of litigation, Mr. Leung was examined on 23 June 2009 jointly by the experts, Drs. Paul Cheung and Benedict Liang respectively instructed by Mr. Leung and the Defendant. The experts – as noted in their report (“the Joint Report”) – found that Mr. Leung’s right eye was effectively blind due to the presence of the optic nerve atrophy, poor retinal circulation and a large fibrous strand on the retina.

9.  The blindness on the right eye is reported to have the following effects:

(a)       Loss of stereopsis (three dimensional vision);

(b)       Reduction in about 25% of the visual field;

(c)       Impairment of judgment of distance and depth judgment;

(d)       Mild impairment of visual acuity[2].

10.  The prognosis of Mr. Leung’s right eye is poor.  The blindness is irreversible due to the presence of the optic nerve atrophy, poor retinal circulation and large fibrous strand on the retina[3].

(III)  EVIDENCE

11.  All medical reports as well as the Joint Report have been admitted into evidence without calling any witnesses.   Mr. Leung (whose evidence was received in Chinese without any interpretation) was the only witness in the assessment.

12.  Mr. Leung is now 68 and will turn 69 in July this year. He had, prior to the accident, been in the building materials business for about 40 years, and used to be a director and a 20% shareholder of a medium-size (with about 50 workers) building materials company (for about for 20 years). He also worked as the General Manager in the company.  

13.  As the general manager of the company, Mr. Leung was primarily responsible for samples (tiles) inspection (which required him to go out of the office), making decisions for purchasing materials, and doing all the ancillary documentations.  He was paid about $40,000 per month plus bonus before the accident.

14.  By the end of 2006 or the beginning of 2007, Mr. Leung has substantially recovered.  He however had not resumed his pre-accident work because he said he lost the confidence after having lost the right eyesight.  As one of his duties as the general manager required him to make decisions for materials purchase, he was worried that should he make a wrong decision, the company might suffer loss.  He formally resigned from the company in September 2006, and the reduced income of $30,000 per month that he had continued to receive after the accident also ceased. 

15.  The company was eventually closed on 31 August 2008, and the children of the major shareholder continued to run the same business though under a new name after they bought the company’s shares.  Mr. Leung said that the company was closed partly due to the age of the major shareholder (who is 2 years younger than him), and partly due to his departure from the company.  Though he had been invited to join the new company, he declined due to his alleged lack of confidence.  He also had not made any attempt to find any alternative employment because he said the only thing he knew was the building materials trade in which he had engaged for 40 years.

16.  He has now resumed swimming, and spends his days watching television.  As Mr. Leung suffers restricted vision due to the blindness to one eye, his wife – in order to ensure that he is safe - would  accompany him when he goes out.

(IV)  ASSESSMENT OF DAMAGES

17.  Having observed Mr. Leung in court when he gave evidence, I am on the whole satisfied that he is a truthful witness.  In spite of the severe injury he has suffered, Mr. Leung was able to walk to the witness stand unaided without any difficulty.  He could also read (presumably with his remaining left eye) the documents in the hearing bundle without much difficulty.

18.  Against the findings that I have made, I will now deal with each heads of damages Mr. Leung claims.

(A)  PAIN, SUFFERING AND LOSS OF AMENITIES (“PSLA”)

19.  A sum of $520,000 is agreed in respect of this item.

(B)  LOSS OF EARNINGS

(a)  Pre-trial loss of earnings

20.  The tax returns show that Mr. Leung, as the general manager of the company, earned $40,400 per month and was paid a bonus of $48,000 for the financial year between April 2005 and March 2006 – the year immediately before the accident.  His total pre-accident income was $544,800, making a monthly average of $45,400.  In the Re-revised Statement of Damages, Mr. Leung claims a total loss of $1,941,606.67 ($45,400 x 42 23/30 months) calculated from October 2006 (after his resignation from the company) until the day of the hearing.

21.  Mr. Li, counsel for the Defendant, contends that the pre-trial loss should only be awarded for a period of about 6 to 9 months (which is the reasonable period of sick leave opined by the experts).  Further, he contends that Mr. Leung has failed to mitigate his loss for not seeking other employment.  In any event (Mr. Li argues) Mr. Leung’s employment with the company would have also ceased upon the closure of the company in August 2008 (which is unconnected with the accident). It is thus contended that Mr. Leung should not be awarded any loss of earnings after a period of about 6 to 9 months.

22.  Since the evidence of the experts’ evidence as well as that of Mr. Leung’s show that Mr. Leung’s injury took about 6 to 9 months to recover, I am inclined to find that by March 2007 (at the very latest), Mr. Leung had substantially recovered from the injury, and should have been able to return (as also opined by the experts[4]) to his pre-accident work as the general manager,but with reduced efficiency.  I have considered the reason given by Mr. Leung for not returning to work - which is said to be due to his lack of confidence.  There is however no evidence that Mr. Leung has been affected psychologically. I am unable to accept the alleged loss of confidence as a reasonable and valid reason.  I find that had he wanted to, he should be able to continue to inspect samples with his remaining left eye, make purchase decisions and do documentation with perhaps the assistance of the additional staff.

23.  I have no information as to the amount he would be paid had he returned to work with reduced efficiency.  I observe, however, Mr. Leung had continued to receive $30,000 per month after the accident until his voluntary resignation in September 2006.  Having regard to his pre-accident salary of about $45,000 per month (inclusive of bonus), I believe $30,000 per month should represent a reasonable reduced remuneration for a man of Mr. Leung’s position in the company. The amount reduced is about $15,000. I think this is a fairly reasonable sum the company would need to cover the additional costs for making special arrangement to accommodate Mr. Leung’s reduced efficiency by, for example, deploying additional staff.   Hence, as from March 2007, I find that Mr. Leung would have been able to continue to work with reduced efficiency (and earn a reduced income of about $30,000 per month) until the closure of the company in August 2008.

24.  Mr. Leung has given various reasons for the closure of the company. Among the reasons given, I find that the age of the major shareholder (who was around 65 at the time of the closure)is the most probable reason. The closure is therefore entirely unconnected with the accident. 

25.  In light of my finding that the closure was nothing but unconnected to the accident, I do not think that Mr. Leung should be entitled to be compensated for any loss of earnings after the company had ceased business.  When the business was sold to the children of the major shareholder in 2008, Mr. Leung was already 67.  Mr. Leung himself has repeatedly said during his oral testimony that the trade of building materials was the only thing he knew.  Neither had he shown any intention or inclination to do any other types of work (such as to work as a watchman). I therefore tend to believe that it would be most improbable for Mr. Leung to find a new job had he not injured and continued to work in the company after its closure in August 2008.  Given his age, Mr. Leung would have likely regarded that as the convenient time to embark on his retirement (in particular when both of his children were already adults in their early 30s).

26.  In the circumstances, I am unable to accept that Mr. Leung has suffered any loss (whether full or partial) after the closure of the company in August 2008. Mr. Leung only suffers full loss of earnings as from the date of accident until February 2007, and partial loss of $15,400 per month ($45,400 - $30,000) from March 2007 until the closure of the company in August 2008.

27.  As the Re-revised Statement of Damages pleads that the calculation of full loss is to commence from October 2006, I therefore assess the loss from that month to February 2007. His full loss is therefore $227,000 ($45,400 x 5 months).

28.  From March 2007 to August 2008, the partial loss is $277,200 ($15,400 x18 months).

29.  I award a total sum of $504,200 under this head.

(b) Post- trial loss of earnings

30.  In light of the findings above, I do not find that Mr. Leung should be entitled to any damages.

(C)  VALUE OF CARE AND ATTENTION OF WIFE AND EMPLOYMENT OF PART-TIME DOMESTIC HELPER

(a) Pre-trial loss of value

31.  It is submitted that as a result of the accident, Mr. Leung’s wife- though has been a full-time housewife- has to render extra care in taking care of him.  A nominal monthly value of $1,000 for a period of 36 months is claimed.

32.  Miss Cheung, counsel for Mr. Leung, relies on both the English and Hong Kong authorities[5] in support of this head of claim.

33.  Whilst a nominal value of $1,000 per month is not in dispute, Mr. Li however contends that no award should be made. It is contended that given the fact that Mr. Leung has been perfectly capable of looking himself and that the wife has always been a full time housewife, there is therefore no evidence that paid help would be required.  The case of Cheung Chi Young v Tsang Cho Yiu & Tam Siu Hing[6], in which the court rejected such claim after distinguishing the facts from those of Donnelly v Joyce (F.N.6.) was relied on by Mr. Li.

34.  An injured plaintiff is entitled to recover damages in respect of the fair and reasonable cost of the special attention necessitated by the defendant’s wrongdoing (Donnelly v Joyce (supra.) at 467E).  Further, the person who renders extra attendance on an injured plaintiff does not need to be doing paid work but domestic duties would be entitled the plaintiff to get compensation (Cunningham v Harrison (see F.N.6), per Lord Denning, M.R. at 952A-C).

35.  In the present case, the wife has always been a housewife, and the family never employed any domestic helper.  Therefore, the wife has been doing the general domestic duties such as cooking and cleaning for the family all along.  Mr. Leung said that due to the injury to the right eye, his wife – in addition to her normal domestic duties-  had to provide extra care and attention to him by for example accompanying him when he went out, and helping him with activities such as getting drinks, picking up food during meals. She had also helped him in getting in and out of bedduring the two periods – each of which lasted for 2 to 3 months - after the two operations upon having been advised by the doctor to lie in bed in a particular position after the procedure of silicone oil exchange. 

36.  The starting point for the assessment of Mr. Leung’s claim would be (according to the established legal principle, which continues to derive from Donnelley v Joyce (ibid.)) is to ask a hypothetical question as to whether Mr. Leung would be required to hire someone to provide the extra attendance as set out in the last paragraph (which services had been rendered by the wife gratuitously).  On the evidence, I find for a period of about 6 months (which covered his confinement to bed after the second operation) Mr. Leung had a reasonable requirement forextra care.  Hence, the reasonable amount for the value of such services should be recoverable.

37.  As there is no dispute as to the reasonableness of the nominal sum of $1,000 per month, I allow a sum of $6,000 under this head.

(b)  Post-trial loss of value

38.  Mr. Leung has now resumed his swimming. I find that he is on the whole able to walk about without much difficulty.  Whilst I would accept that his wife would continue to provide care and attention to him due to his restricted vision, I believe however the rendering of such services is more due to the wife’s concern rather than Mr. Leung’s reasonable need. Hence, I do not think it is reasonable to make any award to compensate the wife’s care not necessitated by need.

(D)  SPECIAL DAMAGES

(a)  Medical Expenses

39.  Mr. Leung has incurred a total amount of $195,671 for medical treatments, $5,200 of which was in respect of a laser operation to the left eye.  Mr. Li disputes almost the entire sum claimed.

(i)  The sum of $5,200 for the left eye

40.  In respect of the amount incurred for the left eye, it is contended that Mr. Leung is not entitled to be compensated for an expense totally unconnected with the accident.  Mr. Li pointed out that apart from a reference in the Joint Report that “on 6 March 2007, left eye peripheral retinal degeneration and thinning was noted and laser barrier was done”, there is no medical report in support of the necessity for the operation to the left eye. 

41.  Mr. Leung said thathe was advised by Dr. Jon to have the surgery after a small “hole” was discovered in the left eye during an eye examination. He said that the doctor opined - whose opinion he had accepted - that it was important to preserve his remaining eyebecause of the lose of the eyesight.

42.  Based on the reason as given by Mr. Leung, Miss Cheung submits that as a result of the lose of one eye sight (caused by the Defendant), it is just reasonable for Mr. Leung to undergo the operation to preserve the only remaining eye he has still got.

43.  I am unable to accept Miss Cheung’s submission.  To allow recovery for this item of expense, in my view, would tantamount to making a tortfeasor to compensate a tort victim an expense to enhance or preserve the latter’s other body parts because of the injury to one part of the body by the former. I am not persuaded that this is a recoverable item.

44.  Hence, I decline to make an award for the expense claimed for the operation to the left eye.

(ii)  The sum of $190,471 for the right eye

45.  Apart from an insignificant amount of $100 paid to Caritas, the entire amount incurred in connection with the private treatments to Mr. Leung’s right eye is contended. Mr. Li contends that it is not reasonable for Mr. Leung to seek medical treatments from the private sector after he had refused the advice for operation by the government doctor in Caritas.

46.  Whether a plaintiff is able to recover the costs of private medical treatment would depend on whether a decision to do so is reasonable in all the circumstances (see Yang Yi Chai v Cheng Kam Shing[7]).

47.  Mr. Leung was cross-examined at length for his reasons for seeking private treatments.  He said when he was at Caritas, he was very confused[8]upon learning the severity of the injury to the right eye. He was advised by the doctor there that the right eye would likely become blind even with the operation.  He was further told that any operation could not be carried out immediately and he would have to wait until the next day.

48.  The next day, his family decided that he should consult Dr. Jon, who was recommended by a friend of his wife.  Hence, he discharged himself the next day, and went straight to Baptist Hospital in which Dr. Jon performed the urgent operation.

49.  The injuries to Mr. Leung’s right eye were not slight but very serious.  I was told that in fact 14 April 2006 (two days after his accident) was the Easter Holiday.  Manpower in a government hospital would have likely been tighter than usual.  In fact, had Mr. Leung decided to have gone ahead with the operation at Caritas, he was told that he still needed to wait.   I also tend to think that Mr. Leung would have more confidence in a doctor  (though not known to him personally) recommended to him than a government doctor assigned to perform an operation on him randomly.

50.  In light of the severity of the injuries and all the circumstances leading to his decision to engage private practitioner, I am of the view that such a decision has been reasonably made, and Mr. Leung should not be penalized for the reasonable choice of seeking private treatments.

51.  As there is no suggestion that the fees having been incurred are unreasonable, and they are fully receipted, I allow the amount of $190,471in full.

(b)  Travellng expenses

52.  In the pleading, Mr. Leung claims $2,000 under this item.  In his witness statement (which he has adopted as his evidence), he said that he had spent about $5,400 incurred on taxi rides for the visits made fromhis home and to the hospital, and for other activities.  None of these rides are supported by receipts.

53.  It is contended that as the nearest MTR station is only 10 minutes walking distance through an entirely covered walkway from Mr. Leung’s residence, it is unreasonable for the Defendant to compensate him for the taxi rides when a MTR ride would have only cost him a few dollars.

54.  As I have said above, Mr. Leung’s eye injuries were serious.  Despite the unquestionable convenience of the public transport, I am of the view that it is reasonable for Mr. Leung to take taxi (instead of MTR or any other forms of public transport) during all the visits to the hospital both for the operations and the consultations.  I note that there were two admissions to the hospitals, hence 4 rides.  According to medical receipts Mr. Leung has submitted, there were altogether 6 consultations, which would make up a total of 12 rides.  The total of taxi rides in connection with his medical treatments are therefore 16.  $90 from his home to Baptist Hospital (as stated in his witness statement) for each ride appears to be reasonable.  I would allow $1,440 for taxi rides.

55.  Apart from the trips for his treatments, Mr. Leung is unable to elaborate on how the other taxi rides had arisen.  I tend to think that during the period of convalescence, it is unlikely that Mr. Leung would have ventured far other than visits to doctor or to the nearby vicinities.As to what other places Mr. Leung had gone that justified the taking of taxies, there is simply no evidence. I am therefore unable to allow recovery for the taxi rides other than those I have allowed above.

56.  The total amount allowed for traveling is therefore $1,440.

(c ) Tonic Food

57.  Mr. Leung claims $10,000 for nourishing food, which is the blueberries extracts said to have the effect of strengthening one’s eyesight.  Similarly, no receipts have been produced for this item of claim.

58.  Absence of evidence as to the advisability or suitability of the food is not a bar to recovery for a nominal sum under this item (see Yu Ki v Chin Kit Lam [1981] HKLR419 at 421F, per Roberts, C.J.).  However, when the expenditure on nourishing food without medical advice is claimed, such expenses are required to be supported by evidence as to the amount spent, and justified on the grounds of reasonableness (see Mak Yiu Keung v Ho Cheung Kat [1995]3 HKC 575 at 580B-C).

59.  The consumption of the blueberries extracts is neither supported by medical evidence as to their usefulness nor by any receipts as to their reasonableness.  As Mr. Leung’s right eye (according to the medical evidence) has effectively become blind, I am unable to see how such extracts would benefit an eye sight which is already lost. Hence, I disallow this item altogether.

(E)  FUTURE MEDICAL EXPENSES

60.  Under this head, Mr. Leung claims $5,000 for future regular check up, and $90,000 for the estimated costs of future operation.

61.  The only contention for the claim of $5,000 is whether it is reasonable for Mr. Leung to engage private sector for the future check-up.  As Mr. Leung has sought private medical treatments (which treatments I have found to be reasonable), I hold the view that it would be most logical and reasonable that the future check-up should be done by the same private doctor or another doctor in the private sector. I will therefore allow this sum of $5,000.

62.  The claim for the costs of future surgery is based on the opinion stated in the Joint Report, which says,

“However, if complication such as elevated intraocular pressure or pacification of the silicone oil should occur, operation for removal or exchange of silicone oil will have to be performed.  The purpose of the operation is to keep the retina attached and avoid further complications, there will not be any significant improvement in the eyesight.[9]”

63.  As I have stated in an another judgment[10], a plaintiff, when claiming for the cost of a future operation as a separate award, will be required to adduce sufficient medical evidence to satisfy the criteria laid down by Master Patrick Chan (as he then was) in Lam Kwong Ting v Ho Yau Yuen [1990] 2 HKC381 at 385A-C.

64.  The criteria laid down in Lam Kwong Tin are:

(i)        the burden is on a plaintiff to satisfy the court that the future operation to be carried out is done on medical advice, and that it is necessary or reasonably required for the purpose of recovery or improvement of the injuries sustained or the relief of persistent pain and suffering;

(ii)       the operation is anticipated or likely to take place in the near or reasonably foreseeable future;

(iii)       the expenses to be incurred must be reasonable.

65.  Regarding criterion (i), the experts opine that the future operation would be similar to the second operation Mr. Leung had undergone on 29 September 2006 if there are complications.

66.  As the future surgery would be similar to the second operation, I should consider why Mr. Leung needed the second operation after his first operation and what had been done.

67.  In Dr. Jon’s report, it is recorded that after the first operation the retina was attached. “However, anterior and posterior vitreoretinopathy with tractional detachment gradually developed with dense epiretinal membrane and fold over right macula was noted.”

68.  The procedure of the second operation involved posterior vitrectomey, membrane removal and silicone oil exchange.

69.  It would appear that the second operation was performed to rid of the gradual development of complications arose from the first operation. Though the experts have not expressly stated how likely such complications would be, given the severity of injury and the occurrence of previous complications , I find  -  with the passage of time-  such complications would likely develop, and surgery similar to the second operation would have likely be necessary.  I am therefore satisfied that Mr. Leung has satisfied criterion (i).

70.  In view of the finding above, I further find that criterion (ii) is also satisfied.

71.  As for criterion (iii) regarding reasonableness of the expenses, thecontention is whether it is reasonable for the future operation to be done privately. Given my finding regarding private treatments above, I am further satisfied it would be reasonable for Mr. Leung to receive any future surgery in the private sector.  Both experts estimate the costs to be $90,000 if the surgery is to be done in the private sector.

72.  As the future operation would be similar to the second operation, which Mr. Leung has underdone, I should assess the cost of the future operation with reference to the amount already incurred by the second operation   The total cost of the second operation is only $44,960.  Given the date of the future operation being uncertain (though I have found that there is such a likelihood), I am unable to accept that $90,000 as the experts have estimated represents a reasonable amount when there is no evidence that the cost of future surgery would have likely been increased by almost 50%.

73.  In the circumstances, I find that the reasonable cost of the future operation would be around $45,000, and award this sum.

74.  The total amount to be awarded under this head is therefore $50,000.

(V)  SUMMARY OF AWARDS

(VI)  INTEREST

75.  There should be the usual award of interest on PSLA at the rate of 2% per annum from the date of writ (30 June 2008) to the date of judgment and on pre-trial special damages at half of the judgment rate from the date of the accident (12 April 2006) to the date of payment (as pleaded in the Re-revised Statement of Damages).

(VII)  CONCLUSION

76.  I enter judgment for the said sum of $1,272,111 together with interest calculated in accordance with paragraph   75   above.

77.  I further grant a costs order nisi that the Plaintiff shall have the costs of the assessment, with certificate for counsel, to be taxed if not agreed.

Representation:

[1] The report of Dr. Jon dated 2 June 2007.

[2] Joint Report, p.6

[3] Joint Report, p.7

[4] Joint Report, p.6

[5] Cunningham v Harrison [1973]QB 942, Donnelly v Joyce [1974]QB454,Bhaktabahur Limbu v Lai Chee Por, HCA4730A/1988, unrep. Cons.J; d.o.j 25 May 1990; Fung Kwok Ki v Wing Sang Construction Co. Ltd [2003]3 HKLRD201 and Wong Chi-On v Yuen Tim Fat [1977] HKLR138.

[6] HCA 6575/1982, unrep. Master Barrington-Jones, d.o.j 5 August 1983.

[7] HCA 1788/1984, unrep. Master Clay, d.o.j March 12, 1985.

[8] He said, “心很亂”

[9] Joint Report, p.7

[10] Lo Wai Yin v Li Chun Kou,unrep. HCPI26/2006, d.o.j.22 May 2009  (paras. 124 and 125)