CHAN SHUI YING v. HYFCO TRAVEL AGENCY LTD

HCPI 1060/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1060 OF 2005

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J U D G M E N T

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1.  Zhangjiajie (張家界) in Hunan (湖南) province is a popular tourist destination attracting many visitors from Hong Kong every year.  In May 2005, the Plaintiff (“Mdm Chan”) and her husband (“Mr Leung”) decided to take a tour to Zhangjiajie.

2.  Mr Leung and Mdm Chan chose a package tour offered by the Defendant, HYFCO Travel Agency Limited (“HYF”). On 17 April 2005, Mr Leung on behalf of himself and Mdm Chan visited one of HYF’s branches to enrol on a 5-day 4-night coach tour, leaving Hong Kong on 22 April 2005. 

3.  The first day of the tour was uneventful and the tour group spent the night in Changsha (長沙), the provincial capital of Hunan.  On the second day, 23 April 2005, the tour would take the group from Changsha to Changde (常德), stopping on the way in Shaoshan (韶山), the former home of Chairman Mao. 

4.  Unfortunately the coach carrying the group met with an accident on its way to Changde.  Mdm Chan was injured in the accident.  She suffered injuries to her head and in particular her left eye.  She was admitted to local hospitals but was repatriated to Hong Kong by air the following day.  After undergoing emergency operations, she remained hospitalised for over a month.

5.  By this action, Mdm Chan seeks damages against HYF for the injuries she has sustained in that accident.  Her claim is brought on the basis of HYF’s alleged breach of contract and/or negligence.

6.  There are 3 main issues for determination:

(1)	Whether the accident was caused by the negligence of the driver of the coach.
(2)	If the driver of the coach was negligent, whether HYF is liable for such negligence.
(3)	If Mdm Chan successfully establishes liability against HYF, the quantum.

Cause of the accident

7.  The accident occurred on Route S208, about 9.9 km from Ningxiang (寧鄉).  The section of that road where the accident occurred was a dual carriageway with a width of 9 m for the main carriageway, ie, 4.5 m each lane.  Immediately bordering both sides of the main carriageway were paved cycle lanes.  From a video and photographs of the scene taken in May 2006, the cycle lanes were about 1 m wide.  Immediately next to the cycle lane on the right side of the road (towards Ningxiang direction) was a hard shoulder covered in grass about 1 m or so in width.  On the right hand side of the road was a slope with its lower part covered in stone up to about 1-1.5 m in height.  Between the hard shoulder and the slope was an open gutter of about 0.5 m in width.

8.  There is no dispute that the coach was travelling on the right-hand lane towards Ningxiang direction before the accident occurred.  At or near a right bend, the coach veered right and hit the slope on the right side of the road, and then fell on its side to the left, with the left side of the coach lying on the road surface and the right side of the coach facing skywards.

9.  As to what had happened before the accident, a number of witnesses gave evidence.

10.  Mr Leung gave a detailed account of the events on the day.  He testified that there was some delay in the morning caused by a longer than expected breakfast, then the group proceeded from Changsha to Shaoshan to visit Chairman Mao’s former residence.  After visiting that sight, the coach headed for Changde where the group was supposed to have lunch.  On the way the coach had a mechanical problem which required it to make a stop at a filling station off the main road it had been travelling on.  The coach stopped at the filling station for some time, which he estimated to be not less than 30 minutes. 

11.  After the mechanical problem had been fixed, the coach resumed the journey to Changde along route S208, and the accident occurred about 30 minutes later.  He said that the group leader had told them upon resuming the journey after the repair that the group would have lunch in Changde at about 2.30 pm.

12.  Mr Leung said that after the coach had resumed its journey, he felt that the driver was driving at a high speed, which he estimated to be over 80 km per hour.  Mr Leung and Mdm Chan were sitting on the third row from the front on the right hand side of the coach.  Mr Leung said he was looking at the scenery when suddenly he felt hard braking, the coach crashed into the slope on the right side of the road and overturned to the left.  Mdm Chan was thrown from the right side to the left side of the coach, hitting the luggage rack on the top part of the coach on the left side.

13.  According to the driver of the coach at the time of the accident (“Mr Jiang”), he was driving at about 50-60 km per hour before the accident.  He largely confirmed Mr Leung’s evidence on the events on the day before the accident, with the exception that the stopover for the repair occurred on the way to Shaoshan rather than afterwards.

14.  As to the events immediately before the accident, his version is, in summary, as follows.  The coach was travelling along S208 towards Ningxiang.  The coach was following a lorry, which was about 30 metres ahead of the coach.  He said that after passing a small village (from video evidence the village was about 10 km from Ningxiang), there was a right bend.  When the coach reached the apex of the right bend, he saw a big lorry (“the Lorry”) in the opposite lane coming towards him.  When he first saw the Lorry, it was farther away than the lorry in front of him, so the Lorry must have been at least 40 to 50 metres away.  When the lorry in front of the coach had passed the Lorry, the latter suddenly pulled into the coach’s lane at a very close distance.  He said the Lorry was about 10 metres from the coach when it pulled into the right lane.  To avoid the Lorry, he immediately steered right.  He did not apply the brakes.  The right front part of the coach hit the slope on the right hand side causing the front section of the coach to tilt upwards, so that the rear bumper of the coach scratched the road surface.  The coach then stopped and slowly fell leftwards, with the left side of the coach’s body landed on the road surface.

15.  Mr Jiang said a number of times in evidence that he did not have time to apply the brakes.  However, in his statement to the local public security authority given shortly after the accident, he said that he did apply the brakes in his attempt to avoid the Lorry.

16.  As to why the Lorry pulled into the coach’s lane, Mr Jiang said that after the accident, he saw a heap of sand or soil lying partly on the left lane.  So he thought that the Lorry was trying to avoid the heap of sand.  However, in his evidence he said he did not see the heap of sand before the accident.

17.  Mr Seah, a member of the tour group sitting on the second row on the left side (ie behind the driver) of the coach also testified that he saw the Lorry pulling into the right lane very close to the coach, and Mr Jiang steered right to avoid it.  He said very firmly that the front part of the coach did not hit the slope, but the right side of the coach body scraped the slope for a distance, it then stopped and slowly turned to the left on its side.  According to him the coach did not slide on the road after it had turned to its side.

18.  Mr Seah estimated the speed of the coach immediately before the accident to be around 40-50 km per hour.  He said that Mr Jiang was trying to go as quickly as possible to catch up lost time, but because of the traffic conditions the coach was simply unable to go faster.  He also saw the heap of sand, which he said was about 60 cm in height.  He also said that the stopover occurred on the way to Shaoshan.

19.  Mr Ip was the group leader employed by HYF to accompany the tour group during the entire tour.  Like Mr Leung, his recollection was that the repair stopover occurred after the visit to Shaoshan.  As to the accident, he said he also saw the Lorry from the opposite direction pulling into the coach’s lane at a close distance.  The coach veered to the right and the right side of the coach hit the slope, and then fell onto its left side.  When it was pointed out to him that there was a gutter between the road shoulder and the slope, he said he recalled that the front part of the coach did dip slightly into the gutter before hitting the slope.

20.  In addition to the witnesses’ evidence, there is a sketch of the scene prepared by the local public security authorities shortly after the accident and signed by Mr Jiang.  The sketch shows the coach with its left side lying on the road at a spot opposite to a roadside distance mark marking 9.9 km from Ningxiang.  According to the sketch, there were scratch marks on the road surface caused by the coach after it had overturned, starting at approximately the apex of the bend and stretching for some 9.85 metres.  From the sketch, it can be ascertained that the right bend was not particularly sharp.

21.  As mentioned above, a video and photographs of the scene taken in May 2006 were produced at the trial.  The visual materials show that the road was relatively straight both before and after the right bend.  In particular, at the apex of the bend, the visibility to the front was well over 100 metres.

22.  It is quite understandable that the witnesses gave different versions of what had happened.  It is often very difficult to recollect precise sequence of events when an accident suddenly occurred. 

23.  Taking into account all available materials, I am satisfied and I find that:

(1)	The coach being driven by Mr Jiang was travelling at a speed close to Mr Leung estimate, ie, at least 80 km an hour, just before entering the right bend.
(2)	Upon or immediately after reaching the apex of the bend, Mr Jiang did see the Lorry.  I also find that the Lorry did encroach partly onto the coach’s (right) lane, but not entirely.  I think it was much more likely that the Lorry was 30 metres or more away from the coach when it attempted that manoeuvre, rather than 10 metres (which was just under 1 coach length) as claimed by Mr Jiang.
(3)	Mr Jiang tried to avoid the Lorry by making a sharp turn to the right, but did not apply the brakes.  As the coach was in the middle of the bend, its body listed to the left and the left side crashed onto the surface.  The coach then slided on the road surface for almost 10 metres before coming to a stop.

24.  I have come to the above findings mainly on the basis of the following pieces of evidence:

(1)	The accident occurred at around 1 pm.  According to a roadmap of the area, the distance between Changsha and Changde was 152 km.  Ningxiang was closer to Changsha and about 120-130 km from Changde.  The coach had not yet reached Ningxiang at the time of the accident.  It is reasonable to think that Mr Jiang would drive as fast as he could along a relatively straight stretch of the road right before the bend.
(2)	The stretch of the road just before the bend was rather straight.  It seems to me unlikely that the coach was only doing 60 km per hour or below, particularly when Mr Jiang was trying to catch up lost time.
(3)	I also accept Mr Leung’s estimate of the speed of the coach before the accident.  Mr Leung has held a PRC “A” licence, which qualified him to drive a tourist coach such as the coach in question.  He was also a taxi driver by profession.  His estimate is likely to be reliable.
(4)	The injuries sustained by Mdm Chan indicate that the impact causing her to be thrown to the left side of the coach was forceful.  Coupled with the long scratch marks caused by the coach after it had fallen on its side, common sense suggests that the coach must have been travelling at quite a high speed when the accident occurred.
(5)	I attach considerable weight to the sketch prepared by the local authorities.  It was prepared shortly after the accident, and confirmed by Mr Jiang.  The sketch shows that the scratch marks on the road surface started at or near the apex of the bend, and that the coach had stopped at a spot opposite to the 9.9 km roadside marker. Hence Mr Jiang must have attempted to avoid the Lorry in the middle of the bend, at around the apex point.
(6)	It is stated clearly on the sketch that the coach caused the scratch marks after it had fallen on its side.  I have no hesitation in rejecting the evidence that the scratch marks on the road were caused by the rear bumper of the coach.
(7)	Mr Jiang himself said repeatedly in his oral evidence that he had not applied the brakes.
(8)	As I said above, I accept that the Lorry did encroach upon the coach’s lane, but I am unable to accept that it had pulled entirely into the right lane.  I am quite unable to accept that such a large heap of sand as claimed by Mr Jiang and Mr Seah was allowed to occupy a large portion of the left side lane, so as to require the Lorry to pull entirely into the right lane to avoid it.  And if the heap of sand was so big, it is puzzling why Mr Jiang did not see it before the accident.  Hence the likelihood is that the Lorry was attempting to overtake some slow traffic on the cycle lane, or some small obstruction on the road, which would not require it to go entirely onto the right lane.

25.  On those findings, I have no hesitation in concluding that the accident was at least contributed to by the negligent driving of Mr Jiang.  In my judgment he drove too fast in the circumstances, and failed to apply the brakes when he ought to have done.  These two factors combined to cause the coach to fall on its left side: the speed of the coach caused the coach to lean to the left and tip over when Mr Jiang veered right suddenly, and the failure to brake meant that the momentum on impact was not reduced.  Indeed, it seems to me that had Mr Jiang been driving more slowly, and if he had applied the brakes in time, it is quite possible that he would have had sufficient time to avoid the Lorry without losing control of the coach and thereby avoided the accident.

Liability of HYF

26.  HYF contends that it is not liable for Mr Jiang’s negligence.  HYF’s case is that there is an express term in the contract it had with Mdm Chan defining the scope of HYF’s duties and liabilities.  Relying on the distinction drawn by the Privy Council in the well known case of Wong Mee Wan v Kwan Kin Travel Services Ltd [1995] 2 HKLR 541 at 545-546, HYF contends that it was only acting as arranger rather than supplier in relation to those parts of the tour which were provided by local operators, hence it is not liable for the default of the employees or persons engaged by the local operator.

27.  The clause HYF relies on is a clause in its “旅遊細則及責任問題(巴士團)” (Translation: Terms and Conditions of the Tours and the Question of Liability (Bus Tour)).  The clause is clause 1 under a section headed “責任問題及特殊情況須知” (Translation: Information on Question of Liability and Special Circumstances), which provide as follows:

“	本公司代團員安排之交通工具(如飛機、輪船、火車或巴士等)、住宿、膳食點、旅遊觀光點或娛樂項目、均非本公司擁有、管理或操作。所有由本公司代團員作出之上述安排，或代上述服務機構單位簽發之任何票券、交換文件、收據、合約或票據等，乃按照上述服務機構預先擬定的規則條款簽發。團員如遇交通延誤、行李損失、意外傷亡及財物損失等，該向擁有、管理或操作有關交通工具、酒店、食肆、旅遊點或娛樂項目之機構直接交涉或追討賠償，本公司概不對該等遺失、傷亡或損失負責。對於非本公司職員之任何疏忽或失職，本公司也概不負責。 團員當根據有關服務機構單位之有關規則條款，進行追討交涉。 團員在行程中遇上任何事故(如參加任何娛樂或遊戲項目時發生意外)而導致傷亡或財物損失，本公司概不對該等傷亡或財物損失負責。”
Translation:
“	The means of transport (such as aircraft, vessel, train or bus, etc) lodging, food venue, travel and sightseeing points or entertainment items arranged by our company for tour members are not owned managed or operated by our company.  All the above arrangements made by our company for tour members, or any tickets, exchange of documents, receipts, agreement or bills, etc, issued by our company on behalf of the above service organization units, are in accordance with the regulations and terms previously prescribed by the above-mentioned service organisation unit(s).  If tour members encounter transport delay, loss of luggage, injury or death by accident, or loss of property, etc, they should negotiate with or lodge their claim(s) for compensation directly against the organization owning, managing or operating the relevant means of transport, hotel, restaurant, travel spots or entertainment items.  Our company is not responsible for those lost items, injury or death or loss.  Our company is neither responsible for any negligence or dereliction of duty on the part of anyone who is not a staff member of our company.  Tour members should proceed with their claim(s) and negotiations according to the terms and regulations concerned of respective service organization unit(s).”

28.  HYF further relies on the fact that it had a contract with one China CYTS Tours Co Ltd, Guangxi (“CYTS”), a tour operator based in Guangxi, to provide the service and arrangements of the “local” leg of the tour.  CYTS in turn sub-contracted with 深圳市安浩實業有限公司運輸分公司 for the provision of the coach and the drivers for the tour, one of whom being Mr Jiang.  Thus HYF contends that it is not liable for Mr Jiang’s negligence.

29.  Mdm Chan contends that the contract she had entered into with HYF was for a package tour provided by HYF.  While HYF may sub-contractor parts of the tour with local operators, HYF remains liable for the safety of the tour and for the negligence of the people engaged by HYF to provide part of the tour.  HYF may delegate performance, but it cannot delegate liability.

30.  Moreover, Mdm Chan contends that the clause had not been incorporated into the contract.  In this connection, Mr Leung described how he enrolled on the tour.  He said that he had read HYF’s advertisement about the tour in a newspaper.  He telephoned HYF and was faxed a 1-sheet itinerary describing the tour.  Having consulted that itinerary with Mdm Chan, he went to HYF’s Yuen Long branch to enrol on the tour.  There he was served by one of HYF’s staff, later identified as one Mr Lam.

31.  Mr Leung said that Mr Lam had gone through the itinerary with him, which he found to be satisfactory.  Mr Lam then filled in an Enrolment Form, inserting Mr Leung’s and Mdm Chan’s personal particulars and contact details.  The total price for the two of them was $1,858, which Mr Leung paid by way of his credit card.  After he had signed the credit card payment slip, he was given an Official Receipt with a stamp of the Travel Industry Council. 

32.  Mr Leung said that he was then given a document captioned “中國旅遊團團友須知” [Translation: Information for PRC Tour Group Members] (“Information Sheet”).  It was a document containing information about the tour, such as the time and place of assembly on the first day, what sort of clothing and personal things the tour group members should bring with them, things to note and the amount of tips they were expected to pay the group leader and tour guides.  Mr Leung said that Mr Lam went through only those part of the Information Sheet which Mr Lam highlighted with a highlighter, but not other parts.  The clause relied on by HYF was printed on the back of the Information Sheet.  Mr Leung said Mr Lam never referred to the terms on the back of the Information Sheet, nor drawn his attention to them.

33.  Mr Lam gave evidence for HYF.  Naturally he was not able to remember this particular meeting with Mr Leung (HYF was able to identify him because of the staff code on the documents).  Mr Lam described in detail what was his normal procedure.  The steps he said he would have taken were largely similar to those described by Mr Leung up to the completion of the Enrolment Form.  The next step, according to Mr Lam, would be printing the Official Receipt with the TIC stamp.  Mr Lam said that the Receipt would be printed before payment was processed because he had to make sure that the names of the tour participants were correct for the purpose of TIC’s insurance cover.  He would then go over the Information Sheet with Mr Leung, explaining those parts which he had highlighted.  For the terms on the back of the Information Sheet, Mr Lam said he himself did not know what they were and had not read them himself.  He would have told Mr Leung that those were terms relevant to the tour which Mr Leung could read back home at his leisure.  The final step, according to Mr Lam, was processing payment.  

34.  On this aspect of the case, I accept Mr Leung’s evidence.  He was able to give very clear evidence of what had happened, and the sequence of events described by him makes more sense.

35.  Accordingly, I am not satisfied that Mr Leung’s attention had been drawn to the clause before the conclusion of the contract.

36.  In those circumstances, it is clear that objectively viewed, the contract between Mdm Chan and HYF was for the provision of the entire tour.  That, I think, accords with what a reasonable consumer in the position of Mr Leung and Mdm Chan would have expected.  After all, as Mr Leung said in evidence, he went to HYF because he trusted HYF and relied on its reputation: HYF had been awarded a “Q” mark quality assurance by the Federation of Hong Kong Industries’ Q-Mark Council.  It was a very well known company in Hong Kong.  He said very firmly that had he been told that HYF was only acting as arranger of parts of tour between the tour members and local operators, he would not have enrolled on the tour.  I have no hesitation in accepting that evidence, which is plain common sense.

37.  In any case, even if the clause had been incorporated into the contract between Mdm Chan and HYF, it is clearly in substance a clause attempting to exclude liability for personal injuries resulting from negligence, and hence invalid by virtue of section 7(1) of the Control of Exemption Clauses Ordinance, Cap 71.

38.  I also note that Deputy Judge Longley in a recent decision, Chea Kam Wing v Kwan Kin Travel Services Ltd [2007] 1 HKLRD 937, reached a similar conclusion on similar facts and involving a clause very similar to the one relied on by HYF in this case.

39.  I therefore hold that Mdm Chan has established liability against HYF.

Quantum

40.  I turn to consider the question of quantum.

Injuries and medical treatment

41.  The injuries suffered by Mdm Chan and the diagnosis are not seriously in dispute.  The main dispute is whether Mdm Chan has recovered to such an extent that about 1 year after the accident she was able to lead a more or less normal life.

42.  Mdm Chan was born on 8 November 1948 and was aged 56 at the time of accident. 

43.  After the accident, she was first admitted into Ningxiang County Hospital and was transferred to Sheung Ya Hospital in Changsha later in the afternoon on the same day.  She was in critical condition but was conscious and her vital signs were normal at about 5:00 p.m. in the afternoon.  CT scan was performed on her skull and brain.  The immediate diagnosis was :-

(1)	Severe laceration of occipital scalp (in the face - long from forehead to the bottom of nasal wing and deep to the nasal bone);
(2)	Fracture of left eye orbit;
(3)	Rupture of left eyeball;
(4)	Fracture of nasal bone;
(5)	Small amounts of subarachnoid haemorrhage;

44.  According to the records made by the doctors who attended Mdm Chan in Sheung Ya Hospital, her motor and verbal responses were normal on 23 April and 24 April 2005.

45.  In the evening on 24 April 2005, Mdm Chanwas repatriated to Hong Kong by air and was admitted into Tuen Mun Hospital (“TMH”).  The diagnosis upon her admission to TMH was as follows:

(1)	Conscious and alert;
(2)	No focal neurological deficit except for decreased visual acuity of left eye and restricted left eye movement;
(3)	Periocular swelling of left eye, facial wounds and 14 cm long scalp laceration that was sutured in the Mainland Hospital;
(4)	CT scan showed old craniotomy wound, fracture medial wall and floor of bony orbit of left eye, and subarachnoid haemorrhages; and
(5)	Gaped nasal bridge would and abrasion over tip of nose;

46.  On admission to TMH, Mdm Chan underwent urgent exploration and repair of left eye conjunctional laceration on 24 April 2005.  Her left orbital floor fracture was repaired on TMH on 11 May 2005.  She was hospitalised for about 5 weeks and discharged on 30 May 2005.

47.  Mdm Chan was diagnosed to be neurologically stable on 9 May 2005 by the Department of Neurosurgery, THM.

48.  Prior to the accident, Mdm Chan had a tentorial meningioma.  After receiving 2 operations in June 2002 and February 2003 and radiosurgery in June 2004, Mdm Chan still had a residual tumour shown in a magnetic resonance scan in May 2005.

49.  Mdm Chan also suffered from diet-controlled diabetes mellitus that is unrelated to the accident.

Her current condition

Left eye

50.  Although she has not lost vision of her left eye, it is clear that for all practical purposes Mdm Chan is blind in her left eye.  Dr. Cheung Sek Hong, the ophthalmologist jointly appointed by the parties, opined that she suffers from 20% impairment of the whole person and 50% loss of earning capacity.

Aches and pains, and dizziness

51.  Mdm Chan also complains that she suffers from aches and pains in multiple parts of her body, including head, neck and places where there were lacerations.  She also complains about dizziness andgeneral weakness.

52.  According to the joint report of expert neurologists, Dr. Edmund Woo and Dr. Yu Yuk Ling, Mdm Chan suffered a moderate head injury in the accident that gave her the above symptoms.  Those symptoms were “akin to the diagnosis of a mild post-concussional syndrome.  There is no cognitive, vestibular or physical deficit.”  At the time of the report, the post-concussional syndrome accounted for 1% impairment of the whole person according to the Guides to the Evaluation of Permanent Impairment published by the American Medical Association.  The experts expected that Mdm Chan would have significant improvement in her neurological functions “in the next 6 to 12 months” from the date of the report (ie 31 March 2006) without recommending any future treatment.

Loss of senses

53.  Mdm Chan suffers from numbness and hyperesthesia of the left cheek due to damage of the nerve system.  The injury was diagnosed to be permanent and beyond repair.

54.  She also suffers from a depressed nasal radix fracture and anosmia.  Correction to the nasal radix fracture is not recommended.  As a result the olfactory nerve injury affected by the orbital fracture which caused anosmia cannot be repaired.  The anosmia is permanent.

Psychiatric impairment

55.  Mdm Chan is diagnosed to have Post Traumatic Stress Disorder and co-morbid depressive symptoms.  She would need further out-patient treatment to ameliorate her symptoms and to consolidate progress.

56.  It is noted that Dr Louis Lee of Castle Peak Hospital opined that “her activities of daily living has been minimally impaired, while in the domains of cognitive, social and vocational functioning, it is estimated that she has a mild degree of impairment”.  In an updated report dated 5 March 2007 by Dr W Y Wong of the same hospital, it is stated “[her] worries were compounded by the discovery of a left breast lump in October 2006”.

57.  She was last examined on 26 February 2007 when she was unhappy-looking and complained of broken sleep with occasional nightmares.  Her mood was low with loss of interests, feelings of worthlessness and hopelessness.  No suicidal ideas were noted.  She was very worried a breast lump discovered post accident might be malignant.  Her prognosis remained guarded due to the persistence of symptoms despite treatment and the presence of unfavourable factors.

Ability to lead normal life

58.  It is Mdm Chan’s claim that because of her symptoms and recurrent headache and dizziness, she is not able to do any household work and has to be accompanied almost all the time, particular when going out.

59.  HYF adduced a video showing Mdm Chan going out on her own on 25 April 2006.  The video shows that she arrived at TMH attending follow-up treatment on her own at around 3.30 pm.  Afterwards she took the LRT to the market to buy vegetables.  She then took a bus to return home.  She reached home at around 6.30 pm.  The video shows that she was able to walk on her own for several minutes, cross railway tracks and pedestrian crossings, and board a LRT train and a bus seemingly without much difficulty.

60.  Mdm Chan and Mr Leung frankly accepted in their evidence that from time to time, when Mdm Chan’s conditions were better, and when Mr Leung was unavailable, Mdm Chan would go out on her own but only after taking all prescribed medicines.  This was also what the psychiatrist had recommended to facilitate her rehabilitation.

61.  I bear in mind the evidence that Mdm Chan could, from time to time, go out on her own from April 2006 onwards.  On any view, her recovery has been remarkable.  However, the video shows what happened for a few hours on a single day.  I am unable to accept HYF’s case that Mdm Chan has since April 2006 recovered sufficiently well that she could lead a normal life and no longer needed any assistance from others.

AWARD

(1) PSLA

62.  Counsel referred me to various cases as comparables of the appropriate amount for PSLA.  Mr Y L Cheung on behalf of Mdm Chan submitted that the closest comparable are Mung Yee Ki v Chung Ning HCPI 1223/2003, Suffiad J, 20 October 2005, Ngan Man Yuk v Lau Kwan Him, HCPI 1263/2003, Master K H Hui, 28 February 2005 and Chan Hak Foon v Sureta Harbour Resort, HCPI 386/2003, Master J Wong, 18 October 2005.   He claims $1,000,000 on the basis that the case falls within the “gross disability” category as described in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657.

63.  Mr Geoffrey P Chang, on the other hand, contended that the case falls within the “serious” category, so that $500-550,000 would be appropriate.

64.  In my view, Mdm Chan’s injuries are less serious than those of the plaintiff in Mung Yee Ki, but comparable to those in Ngan Man Yuk cited by Mr Cheung.  I also consider her injuries to be more serious on the whole to the cases relied on by Mr Chang.

65.  Taking into account all the circumstances of this case, I am satisfied that $800,000 is the appropriate amount in respect of PSLA.

(2) Loss of Earnings

66.  It is not in dispute that Mdm Chan was unemployed for some years before the accident.  She was originally a textile factory worker, but unfortunately was laid off when the factory closed.  In 2004 Mdm Chan planned to resume work and undertook 3 re-training courses offered by the Employee Retraining Scheme, two of which related to domestic helper work.  Mdm Chan and Mr Leung testified that it was Mdm Chan’s plan to continue looking for work as part-time domestic helper.

67.  Mr Chang naturally submitted that there is no evidence to show any real or substantial chance that Mdm Chan would successfully obtain gainful employment.

68.  In my view, although Mdm Chan had not been successful in finding gainful employment before the accident, it is reasonable to expect that she would be more successful but for the accident.  It is well known that there is a great demand for punti-speaking part-time domestic helpers.  It seems to me quite reasonable to accept that given some time, Mdm Chan would be able to find some such work.

69.  Mr Cheung submitted that but for the accident, Mdm Chan would have obtained gainful employment as a part-time domestic helper earning $6,000 a month.  I think that estimate is overly optimistic.

70.  I would assess Mdm Chan’s loss of earnings as follows.  I think it is probable that Mdm Chan would be able to obtain such work for about 4 hours a day for 10 days a month on average.  Taking, say, $70 per hour to be the approximate hourly rate of a local part-time domestic helper, that makes around $2,800 a month.  Mr Cheung suggested a multiplier of 3 to include pre-trial and post-trial periods which I accept as reasonable.  The loss under this head is therefore $100,800.

(3) Costs of Care

71.  There is no dispute that Mr Leung has given up her previous employment as a taxi driver to look after Mdm Chan since the accident.  Entitlement to this claim is not disputed but HYF contends that the period of care should be restricted to April 2006, when Mdm Chan could (so it is contended) look after herself.

72.  Mdm Chan’s claim is for the costs of a private nurse, at $12,000 per month for 31 months up to the trial.  I have not lost sight of the fact that the cost of care claimed happened to be the amount of lost salary claimed by Mr Leung, although that part of his evidence is not challenged by HYF.  HYF offered $60,000 on the basis of $6,000 for 10 months.

73.  As stated above, I do not accept that Mdm Chan has fully recovered by April 2006 so that she could resume full normal life without need of care thereafter.  However, I take into account the medical opinion, particularly the opinion of the expert neurologists, that her conditions should improve.

74.  I would allow $240,000 under this head on the basis of $10,000 a month for 24 months.

(4) Future Cost of Care

75.  I am not satisfied that Mdm Chan would need full time care as claimed.

76.  However, I am satisfied that while her conditions would improve in the future, she would still need some help in her domestic duties.  This is accepted by HYF.

77.  I agree with HYF’s submission on this point, save that I would take $70 per hour and 3 hours per visit to be more appropriate.  The award under this head is $70 x 3 hours x 3 times x 52 weeks x 10 = $327,600.

(5) Tonic food

78.  Mdm Chan’s claim is for $100,000, while HYF contends that only $10,000 should be allowed.  It is not disputed that this is largely a matter of discretion.  I think $20,000 is reasonable.

(6) Agreed claims

79.  In addition, the parties have agreed on the following items:

(1)	Medical expenses	$12,710
(2)	Travelling expenses	$6,000
(3)	Loss of personal documents	$2,000
(4)	Future medical expenses	$30,000
(5)	Eye glass	$1,000
		$51,710

(7)  Conclusion on Quantum

80.  Total quantum is therefore $1,540,110.

(1)	PSLA	$800,000
(2)	Lost of earnings	$100,800
(3)	Cost of care pre-trial	$240,000
(4)	Cost of care post-trial	$327,600
(5)	Tonic food	$20,000
(6)	Agreed items	$51,710

81.  It is agreed that interest should be awarded on general damages at 2% per annum from the date of the writ until judgment, and on special damages at half judgment rate from the date of the accident until judgment.  I so order.

82.  I also make a costs order nisi that Mdm Chan shall have her costs of the action, to be taxed if not agreed.