CHAN YUK v. DRAGAGES ET TRAVAUX PUBLICS (H.K.) LTD. AND OTHERS

HCPI 1066/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1066 OF 1998

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J U D G M E N T

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1. This is an assessment of damages, liability having already been agreed in the Plaintiff's favour in the odd proportions of 92 percent to 8 percent. The Plaintiff was a construction worker - a concretor by trade - working on the site on which now stands the Conrad International Hotel, on 21 February 1989 now almost 11 years ago. This is the second successive action tried before me in which there has been extreme delay. He was injured when pipes through which concrete was being pumped, ruptured and fell onto him. The injuries included a severe one to his head which led to his being in intensive care, and in a coma, for eighteen days. He was then 44 years old; he is now 55 years of age.

2. Organic brain damage has resulted from the severe head injury. He has been left with a right hemiparesis, a change in his personality, incontinence of bladder and bowel to a significant degree, and a moderate degree of cerebral atrophy. His more minor injuries relatively speaking, included a fracture of the right clavicle, and fractures of the right, 2nd to 5th ribs. He has also been left with impaired sexual function and loss of libido, loss of sense of smell and taste, reduced buccal sensation and loss of sensation in his right cheek, and some loss of hearing in the right ear. He has not returned to work and is unemployable.

3. His current disabled state has both physical and mental components. His cognitive deficits are demonstrated by an I.Q. level well below average. His memory is significantly affected, he becomes irritable easily and is prone to outbursts of temper and aggression against his wife and children. His behaviour is also somewhat disinhibited and this, with the other aspects of his altered personality, constitute a source of stress and alienation on the part of his family.

4. He is substantially dependant upon his long suffering but obviously devoted wife. His mobility is quite clearly affected. Slow and uncertain of gait he needs support as he moves. There are without doubt some, probably substantial, feelings of frustration on his part which are a factor in his general behaviour. There are minor variations in his performance as seen or assessed by different consultants at different times, but there is overall agreement on the fundamentals of his state, both physical and mental. Dr Brian Choa assesses his brain damage as moderately severe. On a scale of 1 to 5 he puts it at 4.

5. He has been deprived of a normal family life. His children seem to be alienated from him to some extent. There is not much amenity value in his life. It would be correct to describe his injuries in the category of gross disability. It is only an unfortunate label and there are of course degrees of gross disability. In my view the proper figure is one of $1,250,000. He is, overall, in a worse condition that the Plaintiff in Wong Hin Pui v. Mok Ying Kit HCPI 763 of 1997.

Care and attention of wife - Pre-Trial

6. This falls into two periods. The first is for the period of about 5 1/2 months when he was in hospital. It is apparent in Hong Kong that where patients are severely incapacitated and require almost constant care, or, at the very least, constant supervision, an enormous burden devolves on visiting family members, if they are willing to shoulder this burden. Madam Chu did. The Defendants have agreed a monthly figure of $7,500 making a total of $41,250 for this period.

7. The second period runs for about 10 years to date. The Plaintiff's claim is based on a multiplicand of $11,482 monthly. This immediately strikes me as a wholly reasonable figure both by reference to the figure agreed by the Defendants in respect of the care whilst the Plaintiff, was an in-patient, and to my approach and consideration of the possible criteria in Ta Xuong v. Incorporated owners of Sun Hing Building [1997] 4 HKC p.171 (see p.182). The wife is currently providing care which includes her having to get up several times during the night to ensure that her husband has no accident. The figure is therefore $1,440,991. The Defendants' contention that the level of her compensation should be equivalent to the wages of an amah working for half days, is just not realistic and in the light of their concession in respect of the care provided by the wife whilst he was in hospital, does not make sense.

Future care and attention (Post-Trial)

8. There has to be provision for care on a 24 hour basis; even though the night hours may be less arduous, the breaks during the night are destructive of health and disruptive of any life-style. I accept that Madam Chu cannot continue to provide care on the current basis. It is too much for her. She is no longer a young woman, and he is a sizeable man to have to manoeuvre or support.

9. I accept her evidence that she has noticed a sudden deterioration in his condition and this presents more of a burden for her. Whilst she will want to continue to provide as much care and support as possible it is unrealistic to contemplate her being able to do this unaided now. She has to have help for certainly half the day which will enable her to return to some form of domestic normality, and at the same time have some chance of rest to cope with the night-time interruptions.

10. The medical evidence supports my view that it is highly unlikely that a domestic amah could cope with all the Plaintiff's requirements. Even if one were able to find a source of help skilled in the nursing/supervision/basic care required I think the turnover of such staff would be frequent and unacceptable.

11. Dr Woo thought the ideal would be a China trained nurse and a China care assistant might be adequate.

12. At some stage a domestic helper will be required additionally, particularly for night time, or alternating day/night with Madam Chu as she has less strength to cope with the Plaintiff at night, and he in turn, as he gets older, is less able to cope. At present however, on the basis of at least a China care assistant for 12 hours a day, I do not think, a domestic helper is required, but I need to consider at what future stage it would be right to provide for this.

13. The r間ime which I think is appropriate immediately is the provision of a China care assistant giving way in due course perhaps to a China trained nurse. At the same time as a China trained nurse replaces the care assistant to provide for the Plaintiff's needs, and the extra relief that Madam Chu requires, the domestic amah will be required. When this change in need will occur is difficult to predict but occur it will. The whole life multiplier is 12 and I propose to apply it in this way:

The cost of a China Care Assistant:

$14,447 (monthly) x 12 x 6 = $1,040,184

The cost of a China Trained Nurse:

$17,070 (monthly) x 12 x 6 = $1,229,040

The cost of a domestic amah:

$4,500 (monthly) x 12 x 6 = $324,000

Administrative costs of domestic helpers [I have halved these to allow for the reduced multiplier] = $96,000

Holiday cover [I have halved this on the same principle]

= $200,000

Compensation for wife's future care

14. With the establishment of a care regime the burden will be substantially reduced, though it will not of course be eliminated. The burden will remain at night time, and perhaps partly during the day when she will be an auxiliary.

15. I think a figure of about $5,000 monthly will meet this bearing in mind she should have more or less a normal day with the new provision. The multiplier again is somewhat uncertain but to maintain a degree of consistency it should also be 6, on the basis that the ultimate care regime should allow her to revert to her role of housewife. The calculation is therefore: $5,000 x 12 x 6 = $360,000.

Loss of Society

16. The Plaintiff claims damages under this head to represent the loss to his wife, by reason of the extensive and permanent disabilities, of his society. The loss is self-evident in the light of these disabilities and his change of personality.

17. It is based on section 20 C(1) of the Law Amendment & Reform Consolidation Ordinance (Cap. 23). The subsection states:

"Where injury is caused to any person by any wrongful act, neglect or default which entitles him to maintain an action and recover damages, and which causes any person referred to in sub-sub-paragraphs (a) to (g) [this includes his wife] to be deprived of his society, the person who is liable to such an action shall, subject to sub-section (3) [this relates to the Fatal Accident Ordinance provision for damages for bereavement] also be liable in damages for the loss of the injured person's society suffered by such of the following persons as survive 30 days after the date on which the cause of action accrued."

The sentences in brackets and underlined are mine. Another sub-section limits the amount of damages to the sum specified in section 4(3) of the Fatal Accidents Ordinance, currently $150,000 but at the time of this accident the limit was $40,000.

18. There is no doubt that the Plaintiff comes within the ambit of the first limb of this provision. Secondly his wife, who has suffered the loss of his society to a significant extent, which I shall have to consider shortly, falls within the second limb - she is identified in sub-sub-paragraph (a).

19. Her claim may be brought in his action. This is clear from the terminology of the section - "which entitles him (or her) to maintain an action" - "the person who is liable to such an action ..... shall also be liable, in damages for loss of the injured person's society suffered by such of the following persons as survive .... after the date on which the cause of action accrued." There is no need for a separate action by the wife. This follows the same logic and practical good sense which allows a Plaintiff husband to claim damages for the care and nursing services rendered by and incidental expenses incurred by his wife.

20. A limit of $40,000 (at that time) was imposed so as to indicate, rationally enough, that the award must bear some relationship to the bereavement award. I am bound by the limit then in force.

21. In cases of catastrophic injury, - otherwise called the disaster category - the loss of society is in some respects as complete as it can be. Loss of physical contact even in the most limited form, loss of the ability of the injured husband to see, or to speak, almost equates to total bereavement. In that event there is, more often than not, a passive object of a wife's devoted care and support, unable to respond save possibly by facial expression.

22. In this case we have a mentally damaged man, with physical problems which render him dependent on his wife. His change of personality is such that he is not a passive recipient of loving care. He abuses the one who is already deprived of his normal society and kindly companionship - her evidence, which I accept, was that before the accident he was a nice and caring man who took his family out.

23. Mr Barretto for the Plaintiff and Mr Lai for the Defendants tell me there is no authority relating to the application of this section of the Ordinance and that they know of no case in which there has been an award under it. Accordingly I must try and fix this award somewhere in the scale short of the maximum because that represents absolute loss in visible, tangible and emotional form.

24. Nonetheless I think this must come near the upper level of the scale to reflect not simply the degree of loss but the negative, rejecting aspect which accompanies it. Loss of companionship in advancing years is often deemed greater that the loss of society of earlier years for which there may be some compensations such as the care and upbringing of children and support from family and friends at large. The proper award given the limitations within which I have to work, is $35,000.

Accommodation

25. The present accommodation is quite inadequate for his disabilities. A better and appropriate accommodation will aid his psychiatric condition. He has to have his own bedroom in my view or, at least a double bedroom, with twin beds, to allow him to be manoeuvred safely. The bathroom must be ensuite and therefore exclusive to his and his wife's use. Another bathroom is necessary for the rest of the household.

26. The Defendants have abandoned their contention that the Plaintiff should have sought public housing and therefore I do not need to consider this. The Court's consideration of this point will have to await another day.

27. I have had to consider much evidence in writing from the surveyors instructed by the parties. Mr Ian Cullen has given evidence in his usual measured, reasonable way. It is essential factual, he having researched a range of properties given the parameters of required living area. There is hardly ever any room for dispute in this area but many contrive to create one.

28. I also have to look to the future and the requirement for space to accommodate two helpers. The argument is consistently raised by Defendants that where Plaintiffs are so badly damaged as to require accommodation they, the Defendants, should not be required to pay for more extensive and sophisticated accommodation when the Plaintiff's pre-accident domestic environment was humble, limited in space, short of facilities, and lacking in refinement, and his income and life-style gave no support for any notion that he would in due course improve his home and its amenities. In the context of such an argument it is necessary to highlight a number of features and the proper course to be adopted by a Court.

29. Hong Kong is noted for many examples of people who rise from humble, hardworking origins and poor facilities, to a state where their living accommodation reflects their achievements. Our society lives by a code that the most industrious, the most careful, the strongest mentally and physically, will always regard the end of the rainbow and the crock of gold as attainable. Once a man or a woman is physically and mentally damaged in an extreme way, that goal is no longer open to them, and what was once tolerable in the belief that the goal was attainable, becomes in many cases a pit of squalor, degradation and despair from which there is seemingly no escape. Such a person, when he or she has a valid claim under this head of damage, is entitled to be put in the situation where they do not have to tolerate that from which they have been prevented from extricating themselves, and which, by virtue of the damage done to them, is intolerable, to them and to their family, destructive of relationships and aggravates their physical and mental condition.

30. The nature of alternative accommodation in Hong Kong is rarely if ever available as purpose built for these circumstances. The essential requirements of such disabled people, made necessary by reason of their disability, means that only the more modern accommodation is likely to meet those needs. Even then it needs adaptation. Rarely will it be ideal. High rise accommodation is not in itself ideal for persons of greatly reduced mobility. On the face of it however, such accommodation, despite its limitations, looks, on a superficial approach, significantly better than the whole Plaintiff had or was likely to get. The concept that has to be grasped is that a man or woman who, by the actions of a tortfeasor, has been deprived substantially of his or her wholeness, is entitled at least to the absolute minimum of alternative environment, which can compensate directly for the limitations, physical and mental which have been imposed.

31. In this case it means approaching the reasonable level of alternative accommodation on the basis of a Laguna City development. It was selected by Mr Ian Cullen, as well as by Peter Cheung Surveyors Ltd. whom the Defendants ultimately decided to abandon in favour of the vague, unreliable and largely hearsay testimony in the form of an affirmation, of an employee of the Defendants' solicitors, which was produced in the course of the trial and which I ruled as both inadmissible and inconsequential. He had been sent out in a last ditch attempt to try and find some cheap properties with a useable area less than considered in the Defendants' expert own report, without providing any consideration of amenity value of the area or reasonableness of internal layout or feasibility of adaptations.

32. The figures set out as the current ones lead me to award, under this head, the sum of $2,430,786 as the net rental of such property of 751 square feet useable area, including the ancillary expenses (applying the whole life multiplier of 12) and the allowance of $200,000 for alterations.

Pre-Trial Loss of Earnings

33. Agreement was reached on this figure before trial in the sum of $2,302,980.

Post-Trial Loss of Earnings

34. This too was agreed in the sum of $1,826,880.

Mandatory Provident Fund

35. The formula presented by Mr Barretto for the Plaintiff is agreed at 5% of the future loss of earnings. Those too have been agreed as I have set out immediately above. Mr Lai has sought to argue against such fund benefit by arguing that the two agreements i.e. formula and future loss of earnings - do not go hand in hand. I think he is wrong. Applying the agreed formula to the agreed future loss produces a loss of $91,344 under this head.

36. I make it clear that I do not accept the Defendants' contention that the Plaintiff would have been classified as only a casual worker. The definition of casual worker in the Ordinance is one who is employed on a day to day basis or for a fixed period of less than 60 days. At no time have the Defendants raised in their pleading or in their answer to the Plaintiff's Statement of Damages, that the Plaintiff's entitlement under the MPF would have been as casual employee only. No employer would be allowed to categorise employees across the board as casual employees simply because they were paid on a daily basis. That is in my view the proper reaction to the Defendants' argument. Such an attempt by employers would be to defeat the object of the Ordinance.

Past Transport Expenses

37. This is claimed at $22,710. Madam Chu's statement deals with this. They are set out in some detail at page 62 of the Plaintiff's Statement of Damages. I consider all these are reasonable and I accept her evidence in this regard.

Future Transport Expenses

38. These are for therapeutic, social and medical journeys essentially by taxi because I accept that public transport involves difficulties for the Plaintiff and those with him. There is inevitably a speculative element in the frequency of such journeys. If one were to allow $100 per week - and that may reflect only one return taxi fare - over a year, that would amount to $5,200. The multiplier must be 12 for the whole life. The amount claimed of $60,000 seems eminently reasonable and accordingly I allow it.

Pre-Trial Medical Expenses

39. These have been agreed in the sum of $6,650.

Future Medical Expenses

Counselling Therapy

40. I accept that this is essential in order to help him adjust to the change of environment, establish a routine and to try and induce some alteration in his relationship with his family. I think it will probably be more intensive for the first six months and then reduce as he finds his surroundings and the care regime established more congenial for him. The family also need some assistance but again I think the improved environment will itself have some effect. Under this head I will allow $70,000.

Neurological Care

41. Some provision should be made for this, as Dr Woo, for the Defendant, conceded. I think a provision of $40,000 is reasonable on a contingency basis, but with some certainty of check-ups.

Psychiatric Therapy

42. I am less convinced of this in the light of the justified need for counselling therapy. I do not think that this will be any more effective than the therapy for which an allowance has already been made. There may well be occasions when he is at risk of a breakdown however, and then something more intensive will be required. On this contingency basis a reasonable allowance would be the same as for the counselling although of course the timing of the need and the frequency will vary - $70,000.

Speech Therapy

43. The need for this is agreed. I think there is an overlap in benefit here with the counselling/therapy dealt with earlier and that is one of the reasons I have reduced these items. I will allow $25,000.

Occupational Therapy

44. This is agreed at $18,000.

Social Aids & Equipment

45. Although he has no immediate need of a wheelchair, I am satisfied on the medical evidence that he will require one in the future and provision will be made for this ($12,000). Other items I regard as necessary are, walking stick with replacement rubber ferrules ($300) continency pads ($50,000), orthopaedic chair ($5,000), shower seat with rail ($3,500), rail fixed by toilet ($1,000), and orthopaedic mattress with waterproof cover ($4,250) relying on the costings provided by Rehabaid. These amounts total $76,050. To that will be added the cost of a hearing aid $8,500.

46. I have adjusted the frequency of replacement downwards as I think that the hard equipment, as opposed to disposables, will have a longer life than suggested.

Miscellaneous Past Expenditure

47. These are dealt with in the statement of Madam Chu at pages 114/115 and I accept what she says. They are rounded down in the claim to $13,500 and I allow that sum as reasonable.

Summary

48. Liability was agreed at 92% on the part of the Defendants. The net figure is therefore $12,030,715. There will be judgment for this sum with costs on a Common Fund basis as agreed between the parties. There will also be interest at the appropriate rates for the relevant periods on those heads of damage which rank for interest to be agreed between the parties.

49. I have made no provision for fund management. This is because the Plaintiff, being under a disability, will have his damages administered by the Court so as to afford the maximum protection.

50. It will be necessary for there to be at least one and probably two applications on behalf of the Plaintiff for payment out of certain sums, for a monthly payment, and for the mechanics necessary for the rental of alternative accommodation. These hearings - it is possible that one of them can be dealt with on paper only - are necessitated by the Plaintiff's condition and so it is proper for the costs of them to be included as part of the costs of the action and borne by the Defendants on the same basis.

Delay

51. This has been extreme. Almost eleven years elapsed before trial. The Plaintiff's present solicitors took over the conduct of this action in August 1995 on assignment by the Director of Legal Aid, from the former solicitors who had been first instructed in on about early 1990.

52. It is clear to me that although four years elapsed after the present solicitors were instructed they cannot be faulted. It is always a burden to take over a case years after the material event from another firm of solicitors, particularly when negligible progress had been made in those early years. Given the obvious difficulties which they encountered the present solicitors were not responsible for any delay. In fact they settled the E.C.C. proceedings within two months of taking over the case and receiving the papers.

53. It is apparent that the former solicitors lost their way in the E.C.C. proceedings. They allowed two years to elapse before explaining to the Defendants' solicitors that their earlier quantification of the claim had been in error and why the payment in made two years earlier had not been accepted. In relation to the Common Law claim - i.e. these proceedings - they became "bogged down" with little progress. They did not serve the Writ and Statement of Claim until 12 months after they were issued. Four years had then passed since the accident. The Defence was filed about one month later (March 1993). Another year passed without progress (1994) and the first six months of 1995 saw a complete lack of activity. The Director of Legal Aid then intervened having not received any positive progress report despite several letters.

54. It may well be that the person handling the matter for the former solicitors was inexperienced. There are many indications of this. Nonetheless substantial delay had occurred which could easily have been avoided. Delay regrettably spawns its own complications and these were inherited by the present solicitors thereby preventing them from accelerating progress.