LI TIN YAU v. LEUNG CHI TAI AND ANOTHER

1985 No A7524

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 26th June 1983 the Plaintiff was a rear seat passenger in a car driven by the 1st Defendant with the consent end/or permission of the 2nd Defendant as the owner of the vehicle. The car went out of control while being so driven and collided with a crash barrier on the left-hand side of the road before veering off and colliding with the concrete barrier in the centre of the road. In this accident the Plaintiff who was 22 years of age at the time, sustained serious injuries and is now a paraplegic.

2. Interlocutory judgment was entered by consent on 6th March, 1986 against both the 1st and 2nd Defendants with damages to be assessed and costs to be taxed if not agreed. The assessment of damages was heard in Court on 12th, 13th, 16th and 17th January, 1989. Plaintiff's Counsel produced a Bundle of Pleadings and 3 Bundles of Documents to the Court. The 1st Bundle of Documents produced under S. 47 of the Evidence Ordinance and 0. 38 of R.S.C. comprised 11 items over 136 pages including medical receipts, salary receipts, Plaintiff's driving licence, certificate of completion of apprenticeship, photographs and a valuer’s report. The 2nd Bundle of Documents, which were not agreed, comprised 19 items over 68 pares including 5 medical reports, a report on technical aids for a paraplegic by an occupational therapist, quotations on an adapted motor vehicle and medical equipment, and a letter relating to the cost of nursing services. The 3rd Bundle was the Documents of the 1st and 2nd Defendants and comprised 6 items over 23 pages including quarterly reports of salary and wages compiled by the Census and Statistics Department, brochure relating to the employment of overseas domestic helpers, quotations of air tares and private nursing costs a letter from the Housing Department and an invoice from a dispensary. The majority of the relevant documents produced were subsequently agreed or produced by the 4 witnesses called by the Plaintiff and the 2 witnesses called by the Defendants.

3. Particulars of the Plaintiff's injuries are set out in the various medical reports and summarised in 4 of the Statement of Claim as follows:-

(a) As a result of the collision the Plaintiff was rendered unconscious and was admitted to the Neurosurgical Unit of Queen Elizabeth Hospital on 26th June, 1983. Physical examination showed that the Plaintiff was unconscious with dilated right pupil and with no movement in the lower limbs.

(b) An X-ray of the skull was taken showing a linear fracture of the T12 vertebral body, A C.T. scan of the skull was performed showing a left epidural haematoma. An emergency craniotomy and evacuation of the clot was performed on 28th June, 1983.

(c)    After the operation the Plaintiff recovered consciousness but the lower limbs remained paraplegic. There was impaired sensation the lower half of the trunk and lower limbs as well as retention of urine and faeces. A myelogram showed blockage of the myodil column at the T11 and T12 level.

(d)    On 2nd July, 1983 a laminectomy was performed at the T11 and T12 level and the operative finding was contusion oedema of the spinal cord with subluxation of the T11 and T12 joint. There was no improvement of muscle power in the lower limbs after the surgery.

(e) A rehabilitation programme was started with physiotherapy and occupational therapy and planning for wheelchair training.

(f) The Plaintiff was discharged from Queen Elizabeth Hospital and admitted to the Margaret Trench Medical Rehabilitation Centre. At this stage the Plaintiff could only pass urine by manual compression of his bladder.

(g)    The Plaintiff's injuries were diagnosed as epidural haematoma and spinal cord injury and on 16th April, 1985 he was assessed as being 100% permanently disabled as a result of traumatic paraplegia.

4. Pursuant to the Practice Direction the Plaintiff had filed particulars of the claim for damages on 7th December, 1988. In his opening address Mr. K. Bokhary Q.C. for the Plaintiff went through these particulars and updated various figures in that document to claim a total of between 4.4 and 6.7 million dollars approximately, depending on the options allowed under certain heads of damages. In the course of the assessment Mr. R. Mills-Owen Q.C. for the 1st and 2nd Defendants agreed to certain items of damages claimed by the Plaintiff. It is not proposed to set out the evidence of the 6 witnesses called as the handwritten notes of the assessment extend to 57 pages in all. As an alternative the relevant evidence of the witnesses and the documentary evidence produced will be referred to in consideration of specific disputed items of damages.

5. The usual starting point in personal injury clams is the general damages award for pain and suffering and loss of amenities. Under this head the Plaintiff claimed $500,000.00 and the Defence were prepared to offer $340,000.00. In this respect the Plaintiff gave evidence that he was 22 years of age at the date of this accident in 1983 and that his leisure activities were playing ball, that is, football as a team member, bowling and badminton, swimming and attending barbecues. During the summer the Plaintiff said he would swim at a pool during the week and at a beach on weekends and holidays.  The Plaintiff said his social life included taking girlfriends to the cinema and eating out at restaurants with his friends and family. Apart from going to restaurants the Plaintiff said he has been unable to participate in sporting, leisure and social activities since the accident. Plaintiff's Counsel emphasised that the Plaintiff had been an athletic and active young man prior to this accident which left him as a paraplegic to spend the rest of his life in a wheelchair with a urine bag strapped to his leg. It was pointed out by Dr. Shroff in his report and his evidence that the Plaintiff was impotent and suffers from headaches and bouts of depression. Further the Plaintiff stated in evidence that he had yet to come to terms with his disability even though it was over 5½ years since the date of the accident.

6. Mr. Bokhary for the Plaintiff submitted that the guidelines as to awards for categories of injuries set out in Lee Ting Lam v. Leung Kam Ming (1980) H.K.L.R. 657 and recently updated by the Court of Appeal in Lau Che Ping v. Hoi Kong Ironwares Civil Appeal No. 12 of 1988 were meant to be a sliding scale and the categories should not be considered as "straitjackets". Plaintiff's Counsel submitted that the Plaintiff should be placed within the disaster category and be awarded $500,000.00. Mr. Mills-Owen for the Defendants described the Plaintiff as an average paraplegic with nothing extraordinary about his condition. Defence Counsel pointed out that the Court of Appeal in Lee Ting Lam's case cited above stated that the category of "gross disability" includes paraplegics with the comment that if young they can be expected to be placed at the upper end of the bracket. The updated award for this category ranges from $225,000.00 to $340,000.00 as set out in Lau Che Ping's case cited above. The Court has not been convinced that the Plaintiff's injuries and circumstances warrant his being classified in the disaster category and he properly comes within the gross disability category. However, it is agreed that he should receive an award for pain, suffering and loss of amenities at the upper limit of that scale and the sum of $340,000.00 will be allowed.

7. The next head of damages to be considered will be that for loss of earnings. The Plaintiff gave evidence that at the date of the accident he was earning $140.00 a day over 25 or 26 day working month as a delivery worker. Eighteen salary receipts were produced as item 6 in the 1st Bundle of Documents. The Defence agreed to figures for loss of earnings from 27th to 30th June, 1983 at $170.00 a day = $680,00 and from 1st July, 1983 to 31st December, 1983 at $3,500.00 a month for this 6 month period = $21,000.00, rather than the figure of $17,500.00 agreed by the parties for a 5 month period. The Plaintiff claimed loss of earnings from 1st January, 1984 to 16th January, 1989 as the date of assessment. (60.5 months) on basis of a median wage of $5,500.00 a month. This median was assessed on the basis of wages at $4,500.00 a month as at lot January, 1984 and wages of $6,500.00 as at let January, 1989. The Plaintiff claims 3 additional double pays over that period - $5,500.00 x 63 months = $346,500.00. The Defence were prepared to allow pre-trial loss of earnings on the basis of a median of $4,173,00 based on averages wages of $3,562.00 per month ($137.00 x 26) in June, 1984 and average wages of $4,784.00 per month ($187.00 x 26) in June, 1988 over 60:5 months from 1st January, 1984 to the date of assessment - $4.173.00 x 60.5 = $252,467.00.

8. The Plaintiff's evidence was that he had been employed by the Kin Ngai Knitting Factory in operating, maintaining and repairing knitting machinery. He had completed an apprenticeship training course with this employer for which he received the certificate produced as item 9 in the let Bundle of Documents. It was his evidence that he was earning $2,000.00 per month with an annual double pay when he completed his apprenticeship in August, 1982 and that he intended to return to work in the knitting industry within 6 months but for his accident. In cross-examination the Plaintiff admitted that he had not completed the technical education portion of his apprenticeship course. Evidence was also given by Yam Kwok Cheung as the manager of the Atlas Knitting Factory for the Plaintiff. It was his evidence that a worker who had completed the same apprenticeship course in the knitting industry as the Plaintiff would have been paid between $4,500.00 to $5,000.00 per month at the beginning of 1984 and between $5,000.00 to $6,000.00 per month with an annual double pay at the present time. Furthermore, Mr. Lam added that such workers would he likely to receive between $100.00 and $200.00 a month in overtime payments and such payments would have been the same since 1984. In cross-examination Mr. Yam admitted he had no wage or salary sheets to support his 1984 wage rates as his factory had been set up since then. However, he did have wage records for 1988 to support his evidence. This witness also agreed with the average wage rates of $137.00 a day in Jung, 1984 and $184.00 a day in June, 1988 for a knitting machine mechanic supplied by the Census and Statistics Department and set out on pages 12 and 3 of the 3rd Bundle of Documents respectively, commenting that these figures were more or less the same as his evidence.

9. As pointed out by Mr. Mills-Owen for the Defendants it was surprising that no evidence was called from the Plaintiff's former employer, Kin Ngai Knitting Factory, as to the wage rates paid to knitting machine mechanics in 1984 and 1988. The Plaintiff's salary receipts (Item 6 in the 1st Bundle of Documents) show he was being paid $100.00 a day in October 1982 as a delivery worker and that his wages increase to $140.00 a day from February, 1983. The salary receipts support the Plaintiff's evidence that he was earning $3,500.00 a month at the date of the accident. The evidence of Mr. Yam that the Plaintiff would have been paid $4,500.00 to $5,000.00 per month at the beginning of 1984 is rejected as unsatisfactory as he was not in business at that date. The figures supplied by the Census and Statistics Department for June 1984 as to the average wage for a knitting machine mechanic at $137.00 a day over a 26 day month ($3,562.00) will be accepted is the Plaintiff's salary on 1st January, 1984. However, allowance should also be made for an extra month's salary each year. Mr. Yam’s evidence as to the effective salary for such workers in January, 1989 as $5,000.00 to $6,000.00 was supported by wage records of tale own knitting factory and is also close to the Census and Statistics figures for June, 1988 of $184.00 a day x 26 day month ($4,784.00). The latest salary figure for knitting machine mechanics taking into account the wage trend since June, 1984 will be set at $5,500.00 per month with an annual allowance for an additional month's salary. The claim for pre-trial lose of earnings is assessed as follows:-

10. The post-trial loss of earnings can be assessed on the basis of present monthly salary of $5,959.00, which includes an allowance for the extra months's salary, and with the agreed multiplier of 15 would be: $5,959.00x12x15 = $1,072,620.00.

11. Defence Counsel submit that this figure for future loss of earnings should be reduced to take account of the Plaintiff's future earning capacity. To this end evidence for the Defendants was called from Mr. Lam Man Kwong of the selective placement section of the Labour Department, which help disabled persons to find employment and encourage employers to employ such persons. It was Mr. Lam's evidence that disabled persons are categorised as follows:-

(1)    deaf;

(2)    blind;

(3)    physically disabled;

(4)    formerly mentally ill and

(5)    mentally retarded.

He said that employment had been arranged for paraplegics in the past depending on their skill and experience. Mr. Lam said that with proper aids and vocational training the Plaintiff should be able to do factory work as an assembly worker or as a sewing machine operator and also various positions in office work. Mr. Lam said that the problem of a paraplegic travelling, to and from his place of work may be overcome by the Rehabilitation Society rehabus providing the necessary transport. Alternatively, he said some forms of data research on newspapers and monitoring television advertising can be done from the home. It was his evidence that the labour shortage had resulted in a 10% higher placement of overall disabled persons in 1985 as compared to 1987 and that 51% of overall disabled applicants had been placed in employment in 1987. In cross-examination this witness admitted the each disabled applicant is subject to an in-depth interview and that recommendations of medical experts and occupational therapist would be taken into account in assessing an applicant’s suitability for employment. Both Dr. R.E.M. Wedderburn and Dr. F.J. Shroff in their reports at items 4 and 5 respectively in the 2nd Bundle of Documents considered the Plaintiff's disability to be 100% from the point of view of earning capacity. The report of the occupational therapist, Mr. Jonathan Wong, at item 6 in the 2nd Bundle of Documents and his evidence does not deal with the possibility of the Plaintiff finding suitable employment in the future.

12. In the absence of more specific evidence from the selective placement section of the Labour Department as to the success rate in finding employment for paraplegics as opposed to the wide categories of disabled persons referred to in Mr. Lam's evidence, and an in-depth assessment of the Plaintiff's suitability for employment, the Court would not be prepared to accept that the Plaintiff has any realistic hope of finding employment in the future. To reach any other conclusion on the evidence presented would be contrary to the expert medical evidence chat the Plaintiff has a 100% disability insofar as future earning capacity is concerned. This possibility of future earning capacity is rejected as being too remote to reduce the award for future loss of earnings which will remain as assessed, that is, at $1,072,620.00.

13. The Plaintiff's claim for services rendered by his family since the date of the accident was revised in the course of the assessment and the value of such services agreed between the parties as $300.00 a month. In this respect the Plaintiff gave evidence that he has not been living with his family for the last 6 months, but that his mother visits him every 2 or 3 days and brings him food and meals and helps with housekeeping and cleaning the flat where he lives with a friend. The Plaintiff claims the agreed sum of $300.00 per month for 57 months from the date of the Plaintiff's discharge from the Rehabilitation Centre in February, 1984 to the date of assessment. This period should he 59 months x $300.00 = $17,700.00. As for the award for future services provided by the mother Counsel for the Plaintiff at first relied on the authority of Lai Hing Wan v. Kowloon-Canton Railway Corp. (1988) H.K.L.J. 512 where a higher multiplier (18) was allowed under the award for the wife's future care and attention to cover the Plaintiff's full life span as compared to a multiplier of 15 allowed for the award for loss of future earnings. Later this submission was revised and a multiplier of 12 was suggested presumably to take account of the Plaintiff's reduced life expectancy and the age of his mother. Dr. F.J. Shroff on page 6 in his first report at item 5 in the 2nd Bundle of Documents on this question states that recent statistics have revealed that the life expectancy of a paraplegic is reduced by 10 years. Defence Counsel submit that the appropriate multiplier should be 10 under this head and point out that this claim overlaps with a later claim for nursing services, at least to some extent. On consideration the revised multiplier of 12 proposed by the Plaintiff's Counsel will he adopted so that the award for future family services is assessed as $300.00 x 12 x. 12 = $43.200.00. The total award is therefore $17,700 + $43.200.00. = $60,900.00.

14. The next head of damages claimed was for hospital, nursing and medical charges. The claims for hospital expenses including hospitalisation in China were agreed as:- $700.00 + $1,680.00 + $1,000.00 + $550.00 =$3,930.00. There was dispute over the claim for the Plaintiff's future medical expenses on the basis of Defence Counsel's argument that these services were available free to the Plaintiff at a Government hospital. In support of this proposition reliance was placed on the English Court of Appeal decision Housecroft v. Burnett (1986) 1 ALL E.R. 332 where a nil assessment was made where the Plaintiff in that case was to be looked after under the National Health Service and no expense would be incurred in supplying his needs. Further reliance was placed on the statement at page 342 in that case that in assessing the " proper and reasonable cost of the needs" each case must be considered on its own facts, but it is not to be assessed regardless of whether it will be incurred.

15. Counsel for the Plaintiff rely an Dr. F.J. Shroff's statement on page 6 on his first report (item 5 of the 2nd Bundle of Documents) under the heading medical treatment that the likeliest complications of a paraplegic are urinary tract infection and bedsores and that for this reason the Plaintiff should see a physican at least once every 3 months and further that if the bedsores became a problem skin grafting may be required. Dr. Shroff in his evidence confirmed this opinion on the basis that prevention of bedsores and urinary tract infection was better than cure. He estimated that the cost of a medical check-up every 3 months would be $100.00 and that the laboratory cost of a urine analysis would be $90.00 with the additional cost for any blood test required. In addition, he estimated the costs of medication and antibiotics to control bedsores and urine infection to he $750.00 a year. In cross-examination Dr. Shroff admitted that Government hospitals provide medical treatment at a modest fee. The Plaintiff in cross-examination admitted that he had not returned to hospital for medical treatment since his discharge in September, 1983. Counsel for the Plaintiff submitted that the Plaintiff's need for regular medical treatment had not been challenged rather that these services should be obtained free of charge at a Government hospital. Mr. Bokhary submitted that the Plaintiff as a paraplegic in a wheelchair should not be required to queue up for medical services at a Government hospital but that he should be allowed to consult a private medical practitioner of his choice. Further he contended that Counsel for the Defendants had relied on an English authority to say that the National Health Scheme there can cover the cost of medical check-up, whereas, there was no such scheme in Hong Kong and the medical services provided by the Hong Kong Government were not as good or equal to those provided in the private sector. The point was also made that under the National Health Scheme in the U.K. a patient has the choice of medical practitioner and the charge for same is met by the Scheme. Plaintiff's Counsel stated that it was standard practice in Hong Kong to attend a private medical practitioner rather than to attend a Government hospital for medical treatment. The Court is satisfied that the Plaintiff should not have to attend a Government hospital for his medical treatment in future but have not been satisifed he is likely to avail himself of a regular check-up every 3 months. On the available evidence he has not had a medical check-up since his release from hospital over 5 years ago. For this reason and relying on the authority cited above that the reasonable cost of a Plaintiff's needs should not be assessed regardless of whether it will be incurred, this Plaintiff will be allowed the cost of a medical check-up, urine analysis and medication every 6 months rather than the recommended quarterly check-up. The suggestion that a higher multiplier of 16 he applied will be rejected and the usual multiplier of 15 used for the loss of earnings claim will be applied. [([$100.00 + 90] x 2) + $750.00] x 15 = $16,950.00. As for Dr. Shroff's suggestion that a skin graft operation may be required at some time in the future if bedsores develop this possibility is too remote to he provided for. Furthermore, if the need for such an operation should arise it can be provided in a Government hospital.

16. The last part of this head of damages is the claim for personal nursing services. On the evidence adduced the Court is not convinced that the Plaintiff is likely to employ a live-in full time domestic helper so that such costs are unlikely to be incurred. Dr. Wedderburn on the 2nd page of his report (item 4 of the 2nd Bundle of Documents) comments, that if the Plaintiff's family were unable to take care of him, he would either have to have a servant or be admitted to an institution. On page 5 of Dr. Shroff's first report dated 22nd August, 1986 (item 6 in the 2nd Bundle of Documents) he states that the Plaintiff may require a personal attendant to help him with his daily needs, such as, bathing, dressing, cooking, laundry and toilet, etc. and that the cost of such help is $2,000.00 a month. In his evidence Dr. Shroff reiterated that the Plaintiff requires part-time help on a daily basis. He also stated that a weekly visit from a qualified community nurse would be desirable and estimated the cost of this service as $100.00 a week but that this service may be provided free by the Hong, Kong Government. The Court will allow for the cost of unqualified part-time personal and domestic help for 3 hours a day over a 26 day month and also for the cost of a weekly visit from a community nurse at $100.00 a visit. It should be appreciated that this claim does overlap to a certain extent with the award for the mother's services. The sum allowed for this head will be rounded off to $2,500.00 per month. The Plaintiff's Counsel suggest a higher multiplier of 16 and the Defendants' Counsel Suggest a lower multiplier of 10, however, the multiplier of 15 previously adopted in this assessment will be followed so that the item for nursing services is assessed as $2,500.00 x 12 x 15 = $450,000.00. The total award under this head of damages is:-

Hospital expenses	$ 3,930.00
Future medical expenses	$ 16,950.00
Nursing services	$ 450,000.00
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TOTAL :	$470,880.00
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17. The next head of damages where substantial dispute arose was the question of future accommodation for the Plaintiff. Counsel for the Plaintiff contended that the Plaintiff required a flat of between 700 – 800 sq. ft. in the private sector. As the rental for such a unit inclusive of rates and management fees was between $8,000.00 to $10,000.00 per month which equated to $1.44 to $1.8 million over 15 years. As an alternative it was proposed for the Plaintiff that he could purchase his own unit in the price range of $850,00 to $1.1 million. Counsel for the Defendants contend that the rent for the family unit in Block 31 of the Tsz Lok public housing estate is $213.00 per month and that the rent of the largest unit in the same estate was $472.00 so that Plaintiff should be entitled to the difference, that is, $472.00 - $213.00  x   12  x  15 = $46,620.00. The Plaintiff’s evidence was that he had lived with his family in a public housing unit in Tsz Lok Estate until 6 months ago when he moved to live with a friend in a unit in Lung Cheung Court, Diamond Hill. He said he would like to have a unit of his own and that convenience would be his first priority, so that he could get around within the flat and to be able to go outside the flat on his own. The Plaintiff stated in evidence that the total area of thee family unit in Tsz Lok Estate was only 120 sq. ft. With a partition for a cubicle and kitchen areas. He said the toilet facilities were outside the flat and inconvenient for him in his wheelchair because of 3 steps to get to the toilet platform. The family unit was on the first floor of a block without lift facilities and according to Dr. Wedderburn's report both the Plaintiff and his wheelchair had to be carried separately downstairs to street level. In cross-examination the Plaintiff admitted that the fami1y had applied in 1983 after his accident for a larger unit in the same estate with lift facilities but that his application was withdrawn in 1984. As an alternative minor alterations were made to adapt the family unit and the public toilet facilities to suit the Plaintiff's needs. The Defendants called Mr. Kwok Chi Tong to give evidence as the housing manager employed by the Housing Department in charge of the Tsz Lok Estate. He said that in 1983 he handled a referral from the Hong Kong Rehabilitation Society relating to the Plaintiff. The application was discussed with the Plaintiff's mother who requested a transfer to a block with a lift and a larger unit with internal toilet facilities. Mr. Kwok said that this application for a transfer to another flat was still being processed by the Housing Department when it was withdrawn. He said that he had recommended that the application for transfer be approve. Mr, Kwok said minor alterations were carried out to the public toilet facilities and the family unit in Block 31 as requested by the Plaintiff's mother. This witness said that applications by disabled persons in public housing units for transfer to larger units and blocks with additional facilities would usually be granted by the Housing Department. Mr. Kwok stated the largest unit in the Tsz Lok Estate had an area of 26.01 square metres and that present rent for such a flat in a block with lift access was $472.00 per month as compared to the Plaintiff's family unit in Block 31 of the Tsz Lok Estae with an area of 11.98 square metres and a monthly rent of $313.00. This witness also said that other larger units were available in other Government housing estates. In cross-examination Mr. Kwok admitted that the unit in Block 16 to which the Plaintiff and his family had applied to transfer was the same area more or less as their existing unit in Block 31. He said that the best provision that the Housing Department could make for the Plaintiff was to transfer him and his family to a modern housing estate which are larger in area (about 400 – 500 sq. ft.) and have separate rooms including bedrooms, kitchen, internal toilet and a gas supply. Mr. Kwok admitted that these modern public housing units were smaller in area than modern units in the private sector which were superior units usually located in a better environment.

18. Mr. Mills-Owen argued for the Defendants that the Plaintiff's claim for the purchase of a unit in the private sector for approximately one million dollars was unjustified and wrong in law and principle being solely based on the rental of a unit in the private sector over the Plaintiff's lifetime. It was submitted that such a purchase would be a capital asset resulting in a substantial windfall for the Plaintiff in due course. Counsel for the Defendants referred to the English Court of Appeal decision in Roberts v. Johnstone (1988) 3 W.L.R. 1247 where it was held that the capital cost of a new house could not he awarded as damages but that the additional cost of providing a new home could. The reasoning for this decision was that such damages should not represent the full capital value of the asset, since it would remain in tact on the Plaintiff's death and therefore represent a windfall to the estate. Counsel for the Defendants argued that to rent or purchase a unit in the private sector vastly exceeded the Plaintiff's needs where until recently he had lived in a public housing estate. Mr. Mills-Oven contends that the Plaintiff's condition does not require him to move into private housing and that it is neither essentialnor reasonable for him to do so, Particularly, as Dr. Shroff in his first report at page 5 suggested the purchase of a flat of about 350 - 400 sq. ft. as more appropriate for him with freedom to move around in his wheelchair and a separate bedroom to himself. It is the Defendants' contention that the Plaintiff is only entitled to reasonable accommodation in the public housing sector to meet his special needs and circumstances and that as public housing is available to him, he is only entitled to claim the increased rental for larger accommodation.

19. Mr. Bokhary for the Plaintiff submitted that the Plaintiff would be required to share any unit in a public housing estate with his family and that such an arrangement is not appropriate for a paraplegic who will live there day in day out for the rest of his life. Plaintiff's Counsel points to the evidence of both Dr. Shroff and Mr. J. Wong, the occupational therapist, that the Plaintiff requires a separate bedroom and a sitting/dining room in which to sit up and entertain friends and family. The Plaintiff's case is that he is entitled to a reasonably comfortable flat of his own in the private sector on the basis that the accommodation available in public housing units are of limited value to him. Mr. Bokhary sought to distinguish the case of Roberts v. Johnstone relied by the Defendants on its facts Insofar as the Plaintiff in this case had no property to sell before the purchase of another property more suited to the needs of the Plaintiff in that case. Plaintiff's Counsel urges a commonsense approach on the basis that as the Plaintiff is clearly entitled to recover the cost of increased rental for accommodation suitable to his needs, he should not be debarred from the purchase of a unit in the private sector, the price of which equates with the overall cost of increased rental for a private sector unit, merely because such a purchase will eventually result in a windfall to his estate. Mr. Bokhary urged the Court to award at least one million dollars as compensation for the Plaintiff to purchase alternative accommodation in the private sector as the need had been established and was unchallenged. Plaintiff's Counsel relied on the minimum rental figure of $11.00 per sq. ft. supplied by the valuer's report (page 135A of item 11 in the 1st Bundle of Documents) to calculate total rent ever 16 years for a 350 sq. ft. unit as $739,200.00 and for a 500 sq. ft. unit as $1,056,000.00.

20. Although the Plaintiff is clearly entitled to recover the increased rental cost incurred by moving from one rented unit to another, he is not entitled to the capital cost of new accommodation as was pointed out by Counsel for the Defendants. The more difficult issue under this head is whether the Plaintiff should be compensated for the cost of increased rental in moving from public housing where the family unit is located to a more expensive private sector unit. The arguments on this issue are finely divided. On the one hand, Mr. Kwok from the Housing Department says that alternative accommodation with considerably larger area was available for disabled persons in both older and modern public housing estates. However, he did not supply evidence of the rental cost for a 400 - 500 sq. ft. unit with separate bedroom, kitchen, internal toilet and a gas supply. Regardless, the Plaintiff as a 28 year old man would be required to share any unit allocated in public housing with his parents on the basis of a transfer of the family unit. In living with a friend for the last 6 months the Plaintiff has indicated that be wishes to live apart from his family and to be with his friends as indicated in his evidence as to how he spends his evenings. At his age and with his disability the Plaintiff is entitled to his privacy and should not have to live the rest of his life with his parents. The Court is aware that in the majority of cases where the cost of increased rental for alternative accommodation has been recovered the Plaintiff's injuries have been classified within the disaster category, whereas, the Plaintiff in this case is a paraplegic within the gross disability category. On the particular circumstances of this Plaintiff and supported by the expert medical evidence the Court is prepared to award the increased rental between the cost of the family unit rental in public housing and the cost of renting a 400 sq. ft. unit in the private sector at the minimum rate of $11.00 per sq. ft. By adopting the standard multiplier of 15, as used throughout this assessment to equate with the Plaintiff's life expectancy, the claim for accommodation is calculated as follows:-

21. The next head of damages to be considered is the claim for travelling expenses. The parties settled the pre-assessment travel expenses at an agreed figure of $7,500.00. The Plaintiff revised his claim for future travelling expenses from $3,000.00 to $6,000.00 per annum and also put forward the novel proposition for Hong Knog that he should have a specially adapted motor vehicle to provide him with greater outdoor mobility. In support of this proposal evidence was provided that the Plaintiff had been issued with a licence to drive a private motorcar with automatic transmission (item 8 of the 1st Bundle of Documents). Plaintiff's Counsel did not pursue the claim for an adapted motor vehicle with much enthusiasm, but rather on the basis as a viable alternative to a lump sum payment for public transport costs of the Plainitff over his lifetime. Counsel for the Defendants suggested a lump sum payment of $20,000.00 to meet the future transport costs of the Plaintiff. Mr. Mills-Owen contended that there was no foundation to claim the cost of an adapted motor car and no basis on the evidence to make such a capital asset award to the Plaintiff. It was also pointed out that there had been no evidence as to the likely costs of the Plaintiff's future travelling expenses and as to how much these public transport costs exceeded his travelling expenses prior to the accident. The alternative proposal to purchase a motor vehicle may have received more favourable consideration as means of transport on a regular basis, such as, to and from a place of employment, if the Plaintiff had been employable after his accident. Even if the claim for a motor car could he supported by authority, there must he considerable doubt whether the frequency of its use on social outings or to attend medical check-ups would be warranted in Hong Kong with its traffic and parking problems, particularly for a paraplegic. In the absence of evidence a lump sum award for future travelling expenses will be made at the Plaintiff’s original figure of $3,000.00 per annum resulting in an award as follows:-

22. The Plaintiff's claim to purchase a television set and a video recorder set and tapes are rejected as luxury items which cannot be said to he essential to his needs. The purchase of such capital cost items, which are no doubt desirable for a paraplegic confined to a wheelchair, must be funded from the Plaintiff's loss of earnings awards.

23. The Plaintiff also claimed a lump sum towards his future holiday expenses. The Plaintiff gave evidence that he had been on holiday twice since the date of his accident to Bangkok and to Macau and on each occasion it was necessary for him to be accompanied by a friend. The Plaintiff's claim under this head was estimated at $5,000.00 a year with a multiplier of 16 = $80.000 00. The claim for the expenses of the Plaintiff's mother or a friend to accompany him on holiday was not pursued. The Defendants were prepared to allow a one off lump sum award of $10,000.00 for future holiday expenses. Counsel for the Defendants contended that Plaintiff's claim under this item was substantially excessive and unlikely to be incurred. After due consideration a lump sum award of $30,000 00 will be allowed under this head.

24. The last head of damages to be considered on this assessment was that for rehabilitation and safety aids and equipment. The first item being the cost of a manual wheelchair was agreed at $3,328.00. The second item was the purchase of a self-propelling light-weight wheelchair with detachable arm-rests and foot-rests and was supported by both Dr. Shroff and Mr. J. Wong, the occupational therapist. The Defendants resisted this claim on the basis that Dr. Shroff in cross-examination said that such a wheelchair could be rented from the Red Cross at $20.00 per month. The Plaintiff should be entitled to purchase a second light-weight wheelchair with the features mentioned above as recommended by Mr. Wong at paragraph 2.31 on page 3 of his report. The cost for this wheelchair at $7,650.00 is set out in the quotation from Universal Mercantile Company (item 16 in the 2nd Bundle of Documents). I accept Mr. J. Wong's estimate of the turnover rate for this item as every 5 years. So the total sum awarded for this item is $7,650.00 x 3 = $22,950.00. There is no evidence as to the maintenance cost of this type of wheelchair apart from the letter from Dr. Shroff dated 13th January 1988 (item 8 of the 2nd Bundle of Documents). However, the Court does not consider Dr. Shroff an expert on the aids and equipment referred to under this head of damages as indicated in the second paragraph of his above letter. This maintenance part of the item will be rejected.

25. The purchase of seat cushion for the Plaintiff’s wheelchair was agreed at $12,000.00 being an initial cost of $2,400.00 replaced every 3 years. ($2.400.00 x 5 = $12,000.00)

26. The puchase of a long handle reacher wit forearm support was agreed at $2,500.00 being an initial cost of $500.00 and replaced every 3 years ($500.00 x 5 = $2,500.00).

27. The purchase of a stair-gliding chair to evacute from a high-rise building in an emergency was agreed at $2,000.00 with no provision for replacement.

28. The purchase of a self-propelled commode/shower chair was agreed at a cost of $5,200.00. Whereas Mr. J. Wong estimated the turnover rate for this item to be every 4 years, Dr. Shroff estimates replacement required every 5 years. As this item of equipment should receive regular use each day, the Court will allow for replacement on 3 occasions within the 15 years multiplier period in line withl Mr. J. Wong's recommendation. Therefore the allowance for this item is $5,200.00 x 4 = $20,800.00.

29. The purchase of an extra-grip bath mat for $100.00 and its replacement every 4 years was agreed - $100.00 x 4 = $400.00.

30. The purchase of walking aids in the form of shoes with calipers at cost of $550.00 with replacement every 4 years and a walking frame at a cost of $400.00 and replacement every 3 years were agreed. The sum to be allowed is calculated as follows:-

$550.00 x 4 =	$2,200.00
$400.00 x 5 =	$2,000.00
	________
SUB-TOTAL:	$4,200.00 =======

31. On the recommendation of Dr. Shroff in his letter dated 13th January, 1988 the Plaintiff claimed the cost of a flexistand to enable him to stand with support and work. This item of equipment was imported and now available in Hong Kong at an estimated cost of $10,000.00. In cross-examination Mr. J. Wong who supported the use of the flexistand as a standing aid after proper training, said that it could be manufactured locally for less than $1,000.00 but would require expert design and manufacture if it was to be effective. However; the point is no such equipment of this type is available locally, and the imported product will be allowed for at the estimated cost of $10,000.00 but without any provision for the replacement of same.

32. The claim for an orthopaedic bed with hoist was based on a statement of Dr. Shroff in his letter of 13th January, 1988 that "Ideally an orthopaedic bed should be used with a hoist for easy transfer to bed from wheelchair". Mr. J. Wong in his evidence said that an orthopaedic bed without a hoist would be suitable for transfer from a wheelchair with removable arm rests and the bed at the same level as the seat of the wheelchair. Dr. Shroff estimated the cost of an orthopaedic bed as $5,000 00 with replacement every 5 years. Without evidence as to the cost of an orthopaedic bed without a hoist, the sum of $4,000.00 will be allowed and also provision made for one replacement of same. Orthopaedic bed allowed at $4,000.00 x 2 = $8,000.00.

33. The purchase of a ripple mattress for the bed to prevent pressure sores was agreed at $2,500.00 as well as replacement every 4 years. Riffle mattress - $2,500.00 x 4 = $10,000.00.

34. The purchase of of an orthopaedic sheep skin at cost of $500.00 and replacement of same every 5 years was agreed. Sheep-skin - $500 x 3 = $1,500.00. The purchase of incontinence aids at an annual cost of $1,314.00 was agreed. The Plaintiff claims for this cost over 16 years which is refused and the usual multiplier of 15 is adopted.

35. Incontinence aids - $1,314.00 x 15 = $19,710.00. The purchase of catheters at an annual cost of $42.00 was agreed. Again the Plaintiff claimed for 16 years but the usual multiplier is allowed. Catheters - $42.00 x 15 = $630.00.

36. The purchase of a bedpan for $216.00 and replacement every 5 years and an orthopaedic cushion for $617.00 and replacement every 2 years were agreed.

37. The Plaintiff's claim for pre-assessment nourishing food was settled at the figure of $5,000.00.

38. The only outstanding claim is that for 2 air-conditioners at an estimated cost of $6,000.00 each. This item is placed in the semi-luxury class by Dr. Shroff in his letter of 13th January, 1988. Both Dr. Shroff and Mr. J. Wong in their evidence stated that air-conditioners were necessary for a paraplegic in summer so that the temperature can he controlled to prevent bedsores arising from perspiration. Dr. Shroff pointed out that bedsores and urinary tract infection are the two main causes of death for paraplegics. The Court is satisfied that the Plaintiff has established the need for air-conditioning in his accommodation. As pointed out by Counsel for the Defendants no evidence was adduced as to the cost of a reverse cycle air conditioner so that heating could also be provided in the winter or any evidence as to how often air-conditioners need to be replaced. Doing the best on the evidence available the Court will allow for the purchase of one reverse-cycle air-conditioner at the estimated cost of $6 000.00 and its replacement once in the multiplier period - $6.000.00 x 2 = $12,000.00. The claim for the cost of electricity of $300.00 per month to run the air-conditioner is rejected.

39. A summary of the awards made under the various heads of damages are as follows:-

(1) Pain suffering and loss of amenities	$ 340,000.00
(2) Pre-assessment loss of earnings	$ 318,675.00
(3) Post-assessment loss of earnings	$l 072,620.00
(4) Value of his mother s services	$ 60,900.00
(5) Hospital nursing and medical expenses	$ 470,880.00
(6) Cost of more suitable accommodation	$ 735,660.00
(7) Transport expenses	$ 52,500.00
(8) Holiday expenses	$ 30,000.00
(9) Rehabilitation and safety aids and equipment	$ 123,602.00
(10) Nourishing food	$ 5,000.00
(11) Air-conditioner	$ 12,000.00
	___________
TOTAL AWARD :	$3,221,837,00
	==========

40. The following items under the above award may he classified as special damages for interest purposes:-

(1) Pre-assessment loss of earnings	$318,675.00
(2) Value of mother s services prior to assessment	$ 17,700.00
(3) Hospital and medical expenses incurred	$ 3,930.00
(4) Cost of purchase of existing wbeehcair	$ 3,328.00
(5) Cost of nourishing food after accident	$ 5,000.00
(6) Travelling expenses incurred	$ 7,500.00
	__________
TOTAL:	$356,133.00
	=========

41. There will be interest on the general damages for pain, suffering and loss of amenities at 2% per annum from the date the writ was issued to the date of the written decision on this assessment. There will be interest on the above special damages at 4 1/16% from the date of the accident. The Defendants are ordered to pay the costs on this assessment, to be taxed if not agreed with a Certificate to issue for two Counsel. The Plaintiff's own costs to he taxed in accordance with Legal. Aid Regulations.