LIU RUISHAN by WU WEIXIA her next friend v. FU YICK FAI

HCPI 165/2021

[2024] HKCFI 1278

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 165 of 2021

________________________

________________________

________________________

J U D G M E N T

________________________

1.  Introduction

1.1  The Plaintiff (“P”)  was knocked down by a light goods vehicle bearing registration mark HF8488 (“LGV”)  at around 10:30 am on 1 June 2018 (“Accident”).  At the time of the Accident, the Defendant (“D”)  was the driver of the LGV.

1.2  D was subsequently charged in KCCC 3567/2018 for “Causing grievous bodily harm by dangerous driving” under section 36A of the Road Traffic Ordinance Cap 374.  After trial, D was convicted of careless driving on 27 August 2019.

1.3  As a result of the Accident, P suffered serious injuries and has become a mentally-incapacitated person.  These proceedings are brought by P’s daughter (“Madam Wu”)  to recover loss and damage against D. 

1.4  Shortly before the commencement of the trial, by a letter dated 19 October 2023 to P’s solicitors (“19/10/23 Letter”), D admitted liability leaving damages to be assessed.  The 19/10/23 Letter was only brought to the court’s attention as an appendix to P’s opening submissions.  There was no explanation by D as to why liability was only conceded shortly before the trial.  However, as the present case has been fixed for trial on liability and quantum in the running list[1], even where the parties have agreed the issue of liability in advance of trial, the action will nonetheless remain in the list for assessment of damages: PD 18.2 §153.

1.5  At the trial, P was represented by Mr John Wright and D by Mr Leon Ho, both of counsel. 

1.6  Counsel have very helpfully provided a table setting out the differences between the parties on the claimed heads of damage as follows (“Table”)[2]:

Head of Damages	P (HK$)	P (RMB)	D (HK$)	D (RMB)
PSLA	2,200,000		2,000,000
Loss of Society	20,000		20,000
Pre-trial Loss and expense
Medical expenses	917,530	47,261	89,000	47,261
Traveling expenses	1,172	3,980	1,172	3,980
PRC nursing home charges		317,822		352,297
Tonic food		80,820		23,220
Other special damages	1,280	106,920	1,280	111,624
Partial loss of income of Wu		21,000		21,000
Medical consultation (Sept 2022)	13,563	11,686	14,672	13,786
Future loss and expense
Costs of case manager	291,600		264,600
Costs of healthcare	3,474,769		0	0
Costs of accommodation	2,802,800			238,764
Costs of technical aids	128,608		108,278
Costs of medical consumables	197,557		159,918
Costs of non-medical equipment	65,625		0
Costs of utilities	32,700		0
Costs of transportation	135,000		108,000
Costs of family members visiting P	338,000		0	0
Costs of future medical treatment	655,000		503,720
Costs of transportation (treatment)	300,000			50,000
Costs of future tonic food	86,400		0	0
Costs of fund manager	583,080		0	0
Total	12,244,684	589,490	3,270,640	861,933

1.7  As is apparent from the Table, there is a measure of agreement between the parties.  The reasons for some of the differences are readily discernable (eg the difference in the claim for pain, suffering and loss of amenities (“PSLA”)). It is perhaps useful to now set out those major or principled differences which require some elucidation:

(1)  In relation to the pre-trial medical expenses incurred in Hong Kong, the major difference between the parties is whether P can claim medical expenses of HK$828,530 (ie the difference between HK$917,530 and HK$89,000)  incurred whilst being treated at Queen Elizabeth Hospital (“QEH”)  from 1 June to 15 September 2018. That difference has been waived (“Waived Fees”)  by the Hospital Authority (“HA”), but when P’s solicitors, properly in my view, informed HA of the existence of these proceedings, HA informed P’s solicitors that (a)  the Waived Fees would be subject to review and (b)  P should “vigorously pursue the claim against [D] and repay all the hospital charges to HA”;

(2)  There is a principled difference between the parties on whether P is to receive future treatment in Hong Kong.  As detailed below, P is not a resident of Hong Kong.  Following her discharge from QEH in September 2018, she returned to Guangzhou and has been staying predominantly at a nursing home (apart from divers periods of hospitalization in the Mainland).  It is P’s case that P should receive future treatment in Hong Kong, which scenario would entail hiring carers in Hong Kong (costs of healthcare), renting a flat in Hong Kong (costs of accommodation)  and making allowance for family members to travel to Hong Kong to visit P (costs of family members visiting P).  As is plain from the Table, those items represent major differences between parties.  It is D’s case that receiving treatment in Hong Kong is not a reasonable option, but it must be pointed out that D accepts that monetary provisions ought to be made for suitable and appropriate arrangements in the Mainland, including substantially equivalent medical treatment for P;

(3)  Another principled difference between the parties is the appropriate multiplier applicable to P’s claim for future expenses.  P and D contend that the appropriate multiplier (in round figures)  is respectively 5 and 4.  

1.8  At the trial, only Madam Wu gave evidence.  Pursuant to Master Kot’s order dated 4 August 2023, the joint reports (respectively prepared by the party-appointed neurosurgeons, orthopaedic surgeons and psychiatrists)  and the reports prepared by the single joint experts in speech therapy and occupational therapy were adduced without oral evidence.

2.  Relevant background

2.1  The matters stated in this section are not disputed.

2.2  P was born on 4 May 1947.  She was 71 years old at the time of the Accident.  P and her family members (including Madam Wu)  are all Mainland residents.  P’s family resides in Guangzhou.

2.3  From 2008 until the Accident, P lived predominantly in Hong Kong to take care of her elderly mother.  According to Madam Wu, P was continuously granted permits to stay in Hong Kong for 3-month periods.  P lived in the Prince Edward area, and would visit her mother who lived in Shatin every 2 or 3 days[3].

2.4  On 1 June 2018, P was walking across the pedestrian crossing on Portland Street (southbound)  from east to west near its junction with Boundary Street (eastbound).  At the time of the Accident, the LGV turned right from Boundary Street (eastbound)  into the junction with Portland Street (southbound)  at excessive speed.  The right side of the LGV’s bonnet violently hit and collided with P’s right side.  After the collision, lost consciousness and sustained injuries to her head, thorax, abdomen, pelvis and skeletons.

2.5  After the Accident, P was admitted to the Accident & Emergency Department of QEH.  P was on the same day put under the care of the Department of Neurosurgery, Department of Surgery and Intensive Care Unit for urgent treatment and operations.

2.6  CT Scan revealed P to have suffered (1)  traumatic brain injury, (2)  thoracic injuries including fractures at various locations and (3)  abdominal, pelvic and other skeletal injuries.  In addition, P suffered from right anterior calcaneal tuberosity fracture.  P was required to undergo multiple operations and subsequently referred to, inter alia, the Occupational Therapy Department and the Physiotherapy Department.  She also received clinical psychological assessments and speech therapy treatments at the QEH.

2.7  As P’s family was not able to pay for the non-resident medical expenses of QEH, it was urged by the hospital that P should be discharged from the hospital as soon as practicable.  At the time of her discharge from QEH on 15 September 2018, she was wheelchair bound with cognitive impairment.  P was admitted into a nursing home in Guangzhou as she refused to eat and needed the insertion of nasogastric tube.

2.8  Whilst back in Guangzhou, P on divers dates and periods received outpatient treatments or was hospitalized.  As may be noted from the Table, such pre-trial medical treatments in the Mainland are agreed.  The point to note, in my view, is that such treatments were carried out on a sporadic and as-needed basis, namely when her conditions deteriorated, and they were targeted principally at addressing P’s deterioration at the time rather than her long-term rehabilitation.

3.  Expert evidence

3.1  A summary of the expert evidence is usefully set out in Mr Ho’s Opening Submissions.  The matters stated in this section are largely taken from that summary, supplemented by matters highlighted by P.

(i)   Expert evidence on neurosurgery

3.2  P was examined by Dr Ng Wing Kit (instructed by P)  and Dr Kan Yiu Ting (instructed by D)  on 27 September 2022.  The neurosurgery experts reached agreement on all areas of their opinion.

3.3  The experts agreed that the Accident caused severe brain injury: unconscious for weeks with undeterminable duration of post traumatic amnesia, fracture skull, extensive subarachnoid haemorrhage, subdural hematoma, frontal lobe contusion, and multiple fractured ribs.  Insult to the brain was further aggravated by hypoxia and hemodynamic instability due to pneumothorax and hypovolemic shock caused by fracture pelvis.  The brain injury was classified as “extremely severe” - the highest on scale of 6.  Grave psychomotor impairment was the rule following this nearly fatal brain injury.

3.4  In terms of future care, the experts opined as follows:

“[7.7.1] Madam Liu is a total invalid and her Basic Living Tasks must be heavily assisted by her helpers: she has to be fed, cleansed, dressed, wheeled to various places, etc. The nursing home she is currently staying appears to be offering reasonable service and we agree that is where she should continue to stay. We also understand extra services may be required on occasions, eg during a bout of infection, etc., and which may attract additional cost. Provisions for these have to be considered.

[7.7.2] It is mandatory for the lady to have physiotherapy to prevent contractures of the limbs and other complications associated with prolonged immobility, e.g., chest infection. We suggest twice a week visit by the physiotherapist is needed.

[7.7.3] We agree that Madam Liu should be followed up regularly, say, once a month, by neurologist, neurosurgeon or psychiatrist to monitor her neurological conditions, especially her insomnia and restlessness and to adjust the dosage of sedatives or hypnotics when needed. We also agree that periodic medical consultations are desirable to diagnose and treat complications because of her immobility, such as renal stones, chest infection, pressure sores. Probably once a month consultation by a rehabilitation specialist or family physician with special interest in rehabilitation is adequate.

[7.7.4] Her double incontinence requires change of napkins as frequently as 8 or 10 times each day. While she usually eats normally through the mouth, at times, she may be reluctant to eat and necessitates the use of a nasogastric tube. The expense for the napkins, feeding tube and the expert personnel to handle the tube (which requires changing every week by trained personnel)  have to be taken into account.

[7.7.5] Mobility is entirely dependent on the use of the wheelchair. Since she is incompetent to operate an electric model, a manual model should suffice. The maintenance and replacement cost of a wheelchair, which commonly lasts 3 or 4 years, is another financial issue to be considered.

[7.7.6] It must be understood that all the above-mentioned measures are meant to maintain her current status of health and safety of Madam Liu. Neurological recovery from catastrophic brain injuries would have completed within 2 to 3 years. Since she was injured more than 4 years ago, her current impairments should be considered permanent, and no form of treatment can bring about a meaningful improvement.” (emphasis added)

3.5  P’s whole person impairment was assessed at 100% and the experts considered P a mentally incapacitated person.

3.6  P was expected to live to 81 years old.  This opinion was derived from the following:

(1)  In Hong Kong, a 75-year-old female (ie P’s age at the time of examination and issuance of the report on 3 November 2022)  is expected to live another 17 years;

(2)  P’s traumatic brain injury would reduce her life expectancy by 65%;

(3)  Thus, P’s life expectancy as assessed in 2022 was [75 + 17 x (1 – 65%)  =] 80.95 rounded up to 81 years old.

3.7  The neurosurgeons’ opinion on P’s life expectancy has given rise to disagreements on what should be the appropriate multiplier.

(ii)   Orthopaedic experts

3.8  P was examined by Dr Lam Chi Keung Johnson (instructed by P)  and Dr Wong Kwok Shing Patrick (instructed by D)  on 30 September 2022.  The orthopaedic experts expressed the following opinions.

3.9  The Accident caused severe brain trauma, bilateral multiple rib fractures with flail chest in right chest, fracture pelvis and acetabulum, right clavicle fracture and right anterior calcaneal tuberosity fracture.

3.10  The treatment prescribed and received was appropriate.  P’s orthopaedic injuries had reached maximal medical improvement.

3.11  In terms of P’s conditions at the time of the examination, P could not articulate the complaints herself, but the problems and conditions stated by her family were consistent with residue of severe brain trauma, contributed by residue of orthopaedic injuries.  Dr Lam opined that the position of right ankle seemed to be “higher” than the left ankle, which was likely due to some adduction on right hip with apparent shortening of right lower limb.  Dr Wong opined that the asymmetrical positioning of the hips and ankles should be due to inability of P to cooperate to position well rather than reflecting any gross bone or joint deformity.

3.12  Dr Lam and Dr Wong respectively assessed orthopaedic whole person impairment at 10.6% and 8% and they agreed that P was not fit for any gainful employment.

(iii)   Expert evidence on psychiatry

3.13  The Plaintiff was examined by Dr Ting Sik Chuen (instructed by the P)  and Dr Yu Wai Tak (instructed by the D)  on 28 September 2022.  The psychiatric experts agree on all aspects of their opinion.

3.14  The Accident caused major neurocognitive disorder due to traumatic brain injury and the prognosis was poor without any evidence of recovery.

3.15  In terms of future care, P should continue to stay in the nursing home with intensive nursing care.  She was recommended to have regular assessment by a speech therapist on feeding advice, as she was prone to have choking or aspiration of food to trachea leading to pneumonia.  Dietitian was required to be consulted for a balanced diet with adequate nutrition.  Regular psychiatric assessment, medical assessment and physiotherapy were required.

(iv)   Expert evidence on speech therapy

3.16  The Plaintiff was examined by Dr Poon Man Wai May (single joint expert)  on 26 September 2022.  Dr Poon summarized the Plaintiff’s performance during her examination as follows:

“On the examination day, Madam Liu’s feeding and swallowing performances were found to be functionally adequate. She managed to self-feed herself congee diet (IDDSI level 5), solid food (IDDSI level 7)  and thin liquid (IDDSI level 0)  without any sign of feeding or swallowing difficulty. However, according to the medical history and as reported by the daughter and the son, Madam Liu’s feeding performances could fluctuate a lot caused by her cognitive deficits. Therefore, this examination might not be able to reflect the whole picture of Madam Liu’s feeding performance after taking into account of the possible fluctuations. In summary, she is diagnosed to have functionally adequate swallowing ability with possible fluctuations in feeding performance.

Drastic deterioration of Madam Liu’s needs and performance on functional communication related to daily activities and social interactions, so as her speech and language abilities were noted after the accident. Her inabilities in functional communications, deteriorated speech and language abilities were contributed by the acquired language disorder with cognitive communication element resulting from the Traumatic Brain Injury.

Both the daughter and the son are very caring and supportive to Madam Liu. They visit her regularly and are well-aware of her communication limitations. However, due to financial constraints, they are unable to support Madam Liu to stay in Hong Kong to receive professional training on functional communication and cognitive functions. Also, without any professional support or education provided by the qualified speech therapists, they do not have the specific skills to help Madam Liu to improve her performances in functional communications. For example, before attending this examination, they were unaware of Madam Liu’s potential in copying her own name by writing instead of speaking. In summary, due to Madam Liu’s cognitive and linguistic deficits, she is diagnosed to have severe level of acquired language disorder with cognitive communication element, therefore, considered to be unable to fully recover her needs and performance on functional communication related to daily activities and social interactions.” (emphasis added)

3.17  Dr Poon opined that P suffered 12-21% whole person impairment contributed by her speech impairment (equivalent to 35-59% of voice/speech impairment contributed by reduced functional efficiency). 

3.18  Dr Poon was of the view that the nursing home environment in Guangzhou might not be satisfactory in terms of boosting P’s needs of functional communication related to daily activities and professional support, and moving to a nursing home in Hong Kong might be a better alternative for receiving long-term speech therapy, language, communication and feeding treatments.

3.19  The speech therapy frequency recommended by Dr Poon was as follows:

Frequency of treatment	Period of training
2 forty five-minute sessions per week	3  months
1 forty five-minute session per week	1 year and 3 months
1 forty five-minute session every other week	1 year and 6 months
Once every month	1 year
Assess need for possible follow-ups	Review on a quarterly basis if required

3.20  Dr Poon suggested that the charges for speech therapist ranged from HK$900 to HK$1,500 per 45-minute session.

(v)   Expert evidence on occupational therapy

3.21  P was examined by Mrs Tsang Lau Kit Ping Alice on 29 September 2022. According to Mrs Tsang:

(1)  The nursing home in Guangzhou had deprived her of the opportunity to rehabilitate from her residual functions;

(2)  Intensive ongoing physiotherapy, occupational therapy and speech therapy were required for her rehabilitation;

(3)  It was recommended that she should be relocated to either an alternative old age home with holistic approach and facilities in Hong Kong or in the Mainland or home environment in Hong Kong which would have better quality assurance of level of rehabilitation service than her own home in the Mainland.

4.  PSLA

4.1  D had agreed P’s claim for HK$2,000,000 pleaded in the Revised Statement of Damages (“RSOD”).  However, P sought to amend the RSOD to seek a higher sum.  I do not understand Mr Ho to have objected to P seeking a sum higher than that pleaded in the RSOD, but he submitted that an award of HK$2,000,000 was appropriate.

4.2  There is no dispute between the parties that the present case falls within the disaster category.  P relies principally on the case on Ng Tat Kuen v Tam Che Fu [2019] HKCFI 1191 as a comparable case.

4.3  In Ng Tat Kuen, the plaintiff sustained what were described as disastrous injuries to his cervical spine.  The plaintiff’s injuries were described by Bharwaney J as follows:

“[8] The plaintiff suffered disastrous injuries to his cervical spine. He suffered a fracture of the C7 lamina, subluxed facet joints at the C5/6 and C6/7 levels, and spinal cord oedema from C3/4 down to C7/T1. Following the diagnosis of fracture dislocation of cervical spine with lower limb paraplegia, he was first treated with Halo immobilization that was followed by an operation of fracture fixation, decompression and instrumentation on 4 November 2010. Bilateral shoulder and elbow flexion power was normal while all finger movements were weakened.

[9] The complications experienced by the plaintiff in his treatment and progress included cardiac arrest for 1 minute on 6 November 2010; pneumonia; neurogenic shock; hyperglycaemia; alcohol-related deranged liver function, and gapping surgical wound that required 2 debridement operations. All these were treated successfully with, inter alia, a tracheostomy, antibiotics and various types of medication.

[10] He was transferred to the SAHK Jockey Club New Page Inn (“SAHK”)  on 4 July 2011 where he received regular rehabilitative training. Clean intermittent catheterisation was done for him regularly by the SAHK nursing staff. With continuous training, his hand function and upper limb strength improved. He was discharged at the end of November 2011 to his current home, which is a 300 square foot compassionate housing unit at Yau Oi Estate granted to him by the Housing Authority.

[11] At the SAHK, the plaintiff was diagnosed to be suffering from diabetes mellitus for which he was kept on medication. While at SAHK, he developed ptosis and was returned to the Tuen Mun Hospital where a diagnosis of myasthenia gravis[9] was made. He was treated with medication. About a year after he returned home, his myasthenia gravis worsened and he had dysphagia[10] and upper limb weakness so much so that he had to be tube fed. He was re-admitted to the Tuen Mun Hospital where he stayed for 3 weeks for medical treatment. The medication for myasthenia gravis was effective and this condition is now maintained with a small daily dose of corticosteroid with no relapse.

[12] Since being discharged home, there was no one available to perform catheterisation for him so his urinary care regime was changed to an indwelling catheter, changed once every 2 weeks by a visiting community nurse. The plaintiff has employed various domestic helpers for his care and the helpers cleared out the urine bags and performed joint ranging and massage for him daily. They also performed housework and accompanied him for outings to the nearby park and for follow up consultations.

[13] The plaintiff attends follow up treatment in the following specialities: orthopaedics, neurology, medicine, ophthalmology, dermatology, podiatry, psychiatry and a combined clinic. He was not attending any urological follow up, and the occasional cloudy urine detected by the helpers was usually cleared by the prescription of antibiotics with no need for hospital admission. Urinary tract infection became very infrequent with the indwelling catheter.

[14] The plaintiff can eat a normal diet after food was prepared for him.  With his limited use of the right hand, he can feed himself, hold a glass of water, brush teeth, wash face, control the television and his electric wheelchair when everything is prepared for him.  The left hand has no useful function while the lower limbs are totally paralysed and without voluntary movement, except for involuntary occasional spasms.  His truncal balance is poor and he can only sit with strong support or when secured with a safety belt.  He cannot transfer from chair to bed and cannot turn himself in bed.  His breathing is compromised due to the spinal injury.  There is no prospect of any further recovery.”

4.4  After reviewing the various cases on the upward adjustments to be made to the four injury categories set out in Lee Ting Nam v Leung Kam Ming [1980] HKLR 657, the learned Judge in Ng Tat Kuen concluded that as at July 2017, the award for injuries falling within the disaster category should be from HK$1,325,000 upwards.  Having reviewed the cases summarized at the appendix of the judgment, the learned Judge awarded the sum of HK$2,250,000.

4.5  Ng Tat Kuen was decided in May 2019.  According to Mr Wright, that award would now be equivalent to around HK$2,400,000, but as the injuries suffered by P were slightly less serious than those of the plaintiff in Ng Tat Kuen, he submitted that an award of HK$2,200,000 should be made.

4.6  In addition to agreeing with Mr Wright that the injuries suffered by P were slightly less serious than those of the plaintiff in Ng Tat Kuen, Mr Ho referred to Ng Tat Kuen §90 for Bharwaney J’s observation that the court should have regard to the age of the plaintiff, and that, for comparable injuries, an award should be less for a more elderly plaintiff.  The plaintiff in Ng Tat Kuen was in his 50s and P was in her 70s at the time of the Accident. 

4.7  Mr Ho further submitted that I should take into account the fact that, unlike Ng Tat Kuen, there is some prospect of a degree of rehabilitation for P, in particular where D is agreeable to an award for the relevant medical expenses for such rehabilitation (subject to the issue of multiplier).

4.8  I think the submissions made by Mr Ho are well-founded.  There is only a 10% difference between the parties which, as a matter of impression, may easily be accounted for by the distinguishing features identified by Mr Ho.  In my view, an award of HK$2,000,000 is appropriate for PSLA.

5.  Pre-trial loss and expense

(i)   Medical expenses in Hong Kong: The Waived Fees issue

5.1  The documentary evidence before the court is as follows.

5.2  In a letter dated 6 October 2023 to HA, P’s solicitors stated, inter alia, the following:

“When ascertaining the amount of medical expenses incurred by our client for receiving treatment of her said injuries from your hospital, we understand that a total sum of HK$828,530 has been waived by you because of our client’s financial hardship.

As medical expenses in relation to the treatment of our client are recoverable from the wrongdoer and upon the principle that the Government (or the taxpayers)  should not subsidize the insurance company which provides third-party insurance coverage for the wrongdoer, it is just and proper that the recovered medical expenses (if any)  should be repaid to the Hospital Authority.

We should be grateful if you can confirm if the said total sum of HK$828,530, if successfully recovered from the Defendant, is required to be repaid to the Hospital Authority by our client or not.” (original emphasis)

5.3  In another letter dated 7 October 2023 to HA, P’s solicitors stated, inter alia, as follows:

“Please confirm if the Hospital Authority considers our client to be under any contractual liability to pay the full sum of the medical expenses and administrative fees of HK$917,530 incurred by the Queen Elizabeth Hospital during her hospitalization in 2018 despite the grant of the waiver of medical expenses (on ground of her financial hardship)  in the total sum of HK$828,530 at that time…

The Defendant considers that our client is only required to pay HK$89,000 to the Hospital Authority but not the waived total sum of HK$828,530 as she was not required to pay the waived sum…

Thank you for your kind attention and we look forward to hearing from you on before 10^th October 2023 in view of the imminent trial of the above matter.”

5.4  HA replied on 17 October 2023 and pointed out, inter alia, as follows:

“By the [6 and 7 October 2023] letters, Hospital Authority (“HA”)  was first informed of the captioned legal proceedings… We entirely agree with you, as stated in paragraph 3 of your letter dated 6 October 2023, that ‘As medical expenses in relation to the treatment of our client are recoverable from the wrongdoer and upon the principle that the Government (or the taxpayers)  should not subsidize the insurance company which provides third-party insurance coverage for the wrongdoer, it is just and proper that the recovered medical expenses (if any)  should be repaid to the Hospital Authority’. In view of the circumstances of the case, we hereby inform you that the waiver is now subject to review.

The liability to pay hospital charges always falls on the patient.  It is undoubtedly just, reasonable and fair in the circumstances that your client should vigourously pursue the claim against the defendant and repay all the hospital charges to HA totaling $917,530 incurred for receiving treatment from QEH…

Your client is requested to keep us informed of the progress of the claim in the legal proceedings.  Meanwhile, all the rights of HA are expressly and generally reserved.”  (emphasis added)

5.5  In his Closing Submissions, Mr Ho relied on Schneider v Eisovitch [1960] 2 QB 430 at 440, where Paull J held as follows:

“In my judgment, strict legal liability is not the be-all and end-all of a tortfeasor’s liability. A plaintiff cannot claim a sum of money because he would like to pay a friend for his services. That would alter the character of the services given. The services must be treated as friendly services given freely by a friend. But to pay out-of-pocket expenses in respect of necessary services freely given does not alter the character of the services. I do not think the test is whether there is a moral duty to pay. Before such a sum can be recovered the plaintiff must show first that the services rendered were reasonably necessary as a consequence of the tortfeasor’s tort; secondly, that the out-of-pocket expenses of the friend or friends who rendered these services are reasonable, bearing in mind all the circumstances including whether expenses would have been incurred had the friend or friends not assisted; and, thirdly, that the plaintiff undertakes to pay the sum awarded to the friend or friends.” (emphasis added)

5.6  During oral closing, Mr Ho’s only argument was premised on the issue of (the lack of)  undertaking to pay over to HA any awarded sum.  He submitted that Madam Wu has not given an undertaking, and even were one given, as P and Madam Wu are not Hong Kong residents and not within jurisdiction of the court, that undertaking is clearly inadequate.

5.7  The documentary evidence shows beyond peradventure that were P successfully in recovering the Waived Fees from D, HA would revoke the waiver given for the Waived Fees.  As is plain from HA’s letter, the Waived Fees are now subject to review pending the outcome of these proceedings. 

5.8  I do not believe D may derive assistance from Schneider, as the character of services gratuitously given by a friend is fundamentally different from that of the Waived Fees.

5.9  In my view, the Waived Fees are recoverable.  On the evidence, I do not believe there is anything to suggest that P is seeking a windfall, in that the Waived Fees, when recovered from D, would not be paid over to HA.  P’s solicitors raised the issue with HA on their initiative (presumably acting on instructions)  which is inconsistent with any suspicion that the claim for the Waived Fees is motivated by a desire to pocket a windfall. 

5.10  In the circumstances of the present case, in particular having regard to the documentary evidence, it seems to me that the position taken by D is not the most attractive.  However, in order to dispel any residual doubt harboured by D, it seems to me sufficient to direct P’s solicitors to provide a copy of this judgment to HA within 3 days, as requested by HA in its letter dated 17 October 2023.  No doubt, HA’s review of the Waived Fees will then be conducted in the light of this judgment.

(ii)   PRC nursing home charges

5.11  The difference between the parties is that P’s figure is calculated to the commencement of the trial, whilst D’s figure has recognized that the nursing home charges are continuing and is therefore calculated to the time of judgment.  I accept D’s figure.

(iii)   Tonic Food

5.12  P’s claim for tonic food is comprised of three elements, namely milk powder, soup and “God of Sun” oral liquid.  At the trial, Madam Wu fairly accepted that the purported benefit of the “God of Sun” oral liquid was not scientific and made perhaps a “psychological” difference to P’s family.

5.13  Mr Ho made the following submissions.  P’s argument that the tonic food is a substitute for solid food presumably applies to the consumption of milk powder and soup, as the “God of Sun” oral liquid is not intended to be a meal substitute.  As the tonic food are substitutes of, but not additions to solid food, by consuming the milk powder and soup, P would not need to consume solid food (which P would consume if the Accident did not take place).  Essentially, P switched her diet pattern from solid food to liquid food as a result of the Accident.  In the absence of evidence that liquid food is more expensive than the original food, P is not entitled to additional damages for tonic food. 

5.14  However, D accepts that P is entitled to a nominal sum on tonic food even in the absence of the necessary evidence required as to the advisability or suitability of the tonic food, if the injured person and his relative reasonably believe the same to be helpful to the injured person’s recovery. The sum offered by D is a concession representing 18 months of consumption of tonic food.

5.15  The “God of Sun” oral liquid comprises a minor portion of P’s claim (around 16.7%).  In view of P’s occasional (and unpredictable)  difficulties in consuming solid food, it seems to me (1)  it is reasonable for P’s family to regard milk powder and soup as necessary and (2)  Mr Ho’s analysis that the tonic food can completely replace solid food is unsound, as it cannot be predicted with any certainty that for any given meal P would or would not be able to consume solid food (§3.16 above).  I acknowledge I have to take into account the questionable efficacy of the “God of Sun” oral liquid.  Doing the best I can, I allow RMB65,000 under this head of damage.

(iv)   Minor differences

5.16  I do not propose to dwell on the minor differences between the parties on (1)  other special damages and (2)  medical consultation in September 2022). I will simply adopt D’s figures which are more generous than those claimed by P.

6.  Future loss and expense

6.1  I will first deal with two general issues, namely (1)  the appropriate multiplier for future expenses and (2)  whether it is reasonable for P to insist on receiving treatment in Hong Kong.

(i)   Appropriate multiplier

6.2  As stated at §3.6 above, the neurosurgeons are of the opinion that a 75-year-old female in Hong Kong is expected to live another 17 years.  That expectation is derived from the Projected Hong Kong Life Table for Females[4].  As P’s traumatic brain injury would reduce her life expectancy by 65%, the experts reasoned that P’s life expectancy as assessed in 2022 would be 81 years old.

6.3  P’s case on multiplier is as follows.  At the time of the trial, P is aged 76.  According to the 2024 Life Table, P would have a life expectancy of 16.29 years before reduction due to her condition.  Applying the reduction, P’s expectation of life would be [16.29 years x 35% =] 5.7 years.  One then needs to refer to Table 2 (Multipliers for Pecuniary Loss for Life (Females)).  For a female aged 76, and applying a discount rate of 1% (for a person with needs of less than 10 years but more than 5 years), the correct multiplier is 14.51 to be reduced by 65%, namely 5.078.

6.4  Conversely, D’s case is based on the expert’s assessment that P is expected to live until 81 years old (ie until 4 May 2028).  As the trial was conducted in November 2023, P’s remaining life expectancy is slightly less than 4.5 years and around 4 years at the time of judgment.  Referring to Table 28 (Multipliers for Pecuniary Loss for Term Certain), and again using a 1% discount rate, the term multiplier for 4 years is 3.92.

6.5  As the parties were content to use round figures, the above explain the difference between the positions respectively advocated by P and D on the appropriate multiplier, namely 5 and 4.

6.6  Both parties referred to Ng Tat Kuen.

6.7  P referred to Ng Tat Kuen §71:

“[71] The award of $3 million was about 86% of the net capital cost of the suitable alternative accommodation. In Lee Suk Yin & ors v National Insurance Company Ltd. the plaintiff, aged 24 at trial, had a life expectancy of about 35 years[66] and the judge chose a whole life multiplier of 19. Under Table 28 of the Chan Tables[67], a multiplier for a term certain of 35 years would attract a multiplier of 23.43 at a discount rate of 2.5%. The 2018 provisional life expectancy figures for males is 82.17[68]. It is explained in §20 of the introduction to the 7^th edition of the Ogden Tables[69] that:

‘…, the medical evidence may state that the claimant is likely to live for a stated number of years. This is often then treated as requiring payment to be made for a fixed period equal to the stated life expectancy and using Table 28 to ascertain the value of the multiplier. In general, this is likely to give a multiplier which is too high since this approach does not allow for the distribution of deaths around the expected length of life. For a group of similarly impaired lives of the same age, some will die before the average life expectancy and some after; allowing for the spread of deaths results in a lower multiplier than assuming payment for a term certain equal to the life expectancy. In such cases, it is preferable to look up the age in the 0% column in Table 1 or 2 for which the value of the multiplier at 0% is equal to the stated life expectancy. The relevant multipliers are then obtained from the relevant table using this age. Take, for example, an impaired male life which is stated to have a life expectancy of 20 years. By interpolation, the age for which the multiplier in the 0% column in Table 1 is 20 is:

(20 – 19.74[70])/(20.57 – 19.74)  x 66 + (20.57 – 20)/(20.57 – 19.74)  x 67 which equals 66.7 years.

The value of the whole life multiplier is then obtained from the 2.5% column of Table 1 for age 66.7 years:

(67 – 66.7)  x 15.38[71] + (66.7 – 66)  x 14.90

which equals 15.04 (compared to 15.78 for the value of a term certain of 20 years using the 2.5% column of Table 28).’” (emphasis added)

6.8  Conversely, D referred to Ng Tat Kuen §§16-17:

“[16] According to the neurological experts, the plaintiff has a remaining life expectancy of 14.4 years from 26 January 2016 but there will be a 25% diminution in life expectancy, owing to the co-morbid diseases, to 10.8 years or 129.6 months. This was asserted by the 4^th defendant in its Answer and is accepted by the plaintiff.

[17] Since the assumed trial date is 28 October 2017, this period will commence 21 months after the date of the report. Deducting the 21 months from the projected 129.6 months of life expectancy produces a remaining life expectancy of 108.6 months or 9.05 years. Table 28 of The Personal Injury Tables Hong Kong 2016 (‘the Chan Tables’)  shows that, at a 1% discount rate for needs lasting less than 10 years, the multiplier for a term certain of 9 years is 8.61. This was asserted by the 4^th defendant in its Answer and is accepted by the plaintiff.” (emphasis added)

6.9  It is P’s case that D’s use of Table 28 is incorrect.

6.10  In my view, I prefer D’s calculation.  Ng Tat Kuen §§16-17 is the part of the judgment where Bharwaney J expressly discussed the issue of multipliers.  Conversely, the passage referred to by P is the learned Judge’s discussion on the future cost of alternative accommodation. 

6.11  I do not regard D’s calculation is disadvantageous to P.  As pointed out at Ng Tat Kuen §§77 to 78, the use of Table 28 (which is D’s methodology)  would usually provide a multiplier which is “too high”. The learned Judge said:  

“[78] A similar exercise using Table 1 of the Chan Tables will produce the following whole life multiplier of 22.94 for a life expectancy of 35 years:

‘By interpolation, the age for which the multiplier in the 0% column in Table 1 is 35 is:

(35 – 34.83[72])  / (35.84 – 34.83)  x 50 + (35.84 – 35)  / ( 35.84 – 34.83)  x 51 which equals 50.33 years.

The value of the whole life multiplier is then obtained from the 2.5% column of Table 1 for age 50.33 years:

(51 – 50.33)  x 23.09[73] + (50.33– 50)  x 22.66

which equals 22.94 (compared to 23.43 for the value of a term certain of 35 years using the 2.5% column of Table 28).

A rough and ready method would be to deduct 0.5 from the value shown on Table 28.’” (emphasis added)

6.12  Notwithstanding the learned Judge’s discussion at Ng Tat Kuen §71, at Ng Tat Kuen §82, the learned Judge’s assessment of the cost of future alternative accommodation was based on the multiplier calculated by the methodology set out at §§16-17 (a whole life multiplier of 8.61), ie D’s methodology.

6.13  Further, as pointed out by Mr Ho, the computation of life multiplier in Kok Wai Leung v Ho Tin Building Material Ltd & Anor [2022] HKCFI 1183 is consistent with that in Ng Tat Kuen:

“[32] The difference between the neurological experts lies in whether discount should be applied to the life expectancy on account of the plaintiff’s carriage of Hepatitis B. That said, the difference is not substantial. The plaintiff and the 2^nd defendant agreed to adopt 23.8 years, being the average of the life expectancy proposed by the experts, as the basis for the assessment. I find that to be reasonable. The plaintiff was 45 years old at the time of the experts’ joint examination when he was therefore expected to live up to 68.8 years old. He is 48 years old now, and the remaining years is 20.8 (or 21).

[33] On this basis, the agreed life multiplier is 16.39 (Chan Table 28 at 2.5% for loss of term certain)  and the agreed work multiplier is 13.53 (Chan Table 9 at 2.5% for loss of earnings to pension age 65 (male)).”

6.14  For the above reasons, I accept D’s argument that the appropriate multiplier in the present case is 4.

(ii)   Treatment in Hong Kong or the Mainland

6.15  It must be reiterated that D’s position is that P is entitled to most of the medical treatment recommended by the experts, but such treatment should take place in the Mainland: §1.7(2)  above.

6.16  I was told by counsel that they were not aware of any judgment in Hong Kong deciding whether a non-Hong Kong resident can claim medical treatment expenses (together with all associated expenses)  in Hong Kong for an extended period.

6.17  Mr Ho in his closing submissions referred to a Malaysian case.  In Chai Yee Chong v Lew Thai [2004] 2 MLJ 465, the Malaysian Court of Appeal reviewed cases in which Malaysian plaintiffs claimed expenses of medical treatments done in Singapore (which were more expensive).  The Malaysian Court of Appeal said:

“The best and safest guide that I can give is always to bear in mind the basic principle that a plaintiff is entitled to recover all expenses reasonably incurred for medical treatment as a result of his injuries, as he is entitled to recover all other expenses so incurred. So if it is reasonable that a plaintiff seeks or receives treatment, whether from the outset or midway, at a private hospital instead of a government hospital, or at a particular private hospital instead of at some other private hospital, or at a private hospital abroad instead of locally, then he is entitled to recover the expenses incurred for medical treatment at the private hospital. Whether it is reasonable that he seeks or receives medical treatment at the private hospital must depend on the facts and circumstances of the case. Therefore in those cases where the courts decided that treatment in the particular private hospital was reasonable, the decision was correct in principle. What error there might have been was in the judge’s assessment of the facts and circumstances, the facts and circumstances being insufficient or being not such as to warrant a finding of reasonableness. But it is not for us to pass judgment on the finding of reasonableness in these decisions because they are not on appeal before us and it was not necessary for us to do so to decide this appeal. Neither, I think, would it be wise, as my learned brother has attempted to do, to lay down a guide as to the circumstances in which it would be reasonable for a plaintiff to seek or receive treatment at a private hospital. One simply cannot foresee the likely ramification of circumstances. The law as to what is reasonable must be allowed to develop as cases are decided in the light of their own particular and peculiar circumstances. Incidentally, I should explain that the reason why I have been speaking of a plaintiff seeking or receiving treatment, and not just seeking treatment, is because I am conscious of the possible existence of cases where it was not the plaintiff or his relatives that chose treatment at a private hospital, but the plaintiff happened to be brought there after an accident by disinterested persons when he was not in a state to make any decision, and was admitted and given treatment there.” (emphasis added)

6.18  It therefore seems to me that it is for P to prove that it would be reasonable for her to insist on receiving treatment in Hong Kong. 

6.19  In my view, P has failed to show that it is reasonable for her to insist on receiving treatment in Hong Kong for the following reasons:

(1)  It appears clear from the evidence that P has thus far not received a holistic treatment in the Mainland primarily because of her lack of financial resources.  This state of affairs can be remedied by an appropriate award of damages;

(2)  One of the main reasons for seeking treatment in Hong Kong is that, according to Madam Wu, there is no registration system of specialist licence for speech therapists in the Mainland, and the chance of arranging the necessary treatment at the nursing home is very slim.  I am, however, not prepared to accept that evidence, which was essentially Madam Wu’s bare assertion.  It seems to me extremely unlikely that there are no qualified speech therapists in the Mainland.  Indeed, the Occupational Therapist Report expressly states that the recommended rehabilitation was possible in the Mainland although it was not easy to obtain information on such specific therapies (section 5.1);

(3)  As submitted by Mr Ho, P cannot be properly taken care of by her family if she receives treatment in Hong Kong.  Madam Wu accepted that she is not qualified to employ foreign domestic helpers in Hong Kong to look after P, which is an essential step recommended in the Occupational Therapist Report;

(4)  P does not have a Hong Kong identity card and it is unclear on what basis she would be permitted to stay in Hong Kong until her death;

(5)  Receiving treatment in Hong Kong would entail uprooting P away from her family.  On Madam Wu’s own evidence, the family members would only be able to visit P sporadically.

6.20  Conversely, there are a number of reasons for P to receive treatment in the Mainland:

(1)  According to the Occupational Therapist Report, P’s family is of the view that it is possible to modify P’s home in Guangzhou (a 2.5-storey house)  to cater for her needs;

(2)  P’s husband, Madam Wu, and P’s son (and P’s grandchildren)  all reside at P’s home in the Mainland;

(3)  Any limitation on P’s family’s ability to take care of P at home may be addressed by the hiring of carers (which is similarly required were P relocated to Hong Kong).  The Occupational Therapist Report contains quotations for the required carers in the Mainland, which suggests that such personnel are available;

(4)  I am prepared to proceed on the basis that it would take more effort in locating and coordinating a holistic treatment for P in the Mainland.  However, P’s family is not expected to carry out such tasks by themselves, as part of the damages to be awarded is for the engagement of a case manager, whose task is to identify appropriate rehabilitation and care services and personnel (Occupational Therapist Report section 5.2).

6.21  For the above reasons, there are practical obstacles in putting in place and executing a treatment plan in Hong Kong and one additionally has to take into account the intangibles of uprooting P (who only has a limited period to live)  away from her family.  If P were to receive treatment in Hong Kong, it is envisaged that she will be living in a rented flat and taken care of by carers (if employing them were possible).

6.22  On the other hand, it seems to me that there are obvious advantages for P to spend her remaining life at her Guangzhou home (remodeled to cater for her needs).  She will be amongst her filial children (§3.6 above)  and still be able to receive a holistic treatment.  It is perhaps more cumbersome to organize and coordinate the treatment regime, but P’s family will have the financial resources to engage assistance for that purpose.  As to the quality of the treatment, I am reluctant, in the absence of proper evidence, to conclude that treatment in the Mainland is necessarily inferior to Hong Kong.  It must also be borne in mind that the treatment contemplated is purely rehabilitative and does not involve a life-endangering procedure such as removing a brain tumour.

6.23  In my view, P has failed to demonstrate that it is reasonable for her to insist on receiving treatment in Hong Kong.

(iii)   Costs of case manager

6.24  The difference between the parties lies in the appropriate multiplier. I adopt D’s figure.

6.25  I must point out that the figure is based on the costs of engaging a case manager in Hong Kong.  Mr Ho did not contend that the costs should be lowered on the basis that the case manager might be engaged in the Mainland.

(iv)   Costs of healthcare

6.26  The differences between the parties are (1)  whether P should receive treatment in Hong Kong or (2)  whether P should remain in the nursing home which would then obviate the need to hire carers.

6.27  On the evidence before me, I believe it is reasonable to relocate P back to her home with suitable remodeling.  I have not lost sight of the evidence of the neurosurgeons and the psychiatrists that P should continue to stay at the nursing home, but it seems to me that their opinion was premised on a “sustenance” basis.  Conversely, I accept the observations made in the Occupational Therapist Report that the conditions at the nursing home are suboptimal for the purpose of rehabilitation.  P’s hair has been shaved, she has to share a room with strangers and there is a lack of rehabilitation activity.  As pointed out in the Occupational Therapist Report, P’s current suboptimal living conditions is due to the financial limitations of P’s family. 

6.28  I have already stated above that there are obvious advantages for P to spend her remaining life at her Guangzhou home, and it would be unrealistic for P’s family to take care of P without any assistance.  P’s home consists of 2.5-storey building and it appears to me that it can accommodate 1 day-shift health care assistant and 1 live-in helper to take care of P, as recommended in the Occupational Therapist Report at a cost of RMB 36,000 per month (Occupational Therapist Report page 35).  I allow [RMB 36,000 per month x 12 months x 4 years =] RMB1,728,000.

(v)   Costs of accommodation

6.29  P’s claim is premised on renting a 82 m² flat in Hong Kong. As I am of view that P should be relocated back to her home in Guangzhou, a reasonable sum should be awarded for remodeling to cater to P’s specific needs.  According to P’s family member, RMB200,000 is required (Occupational Therapist Report Section 3.11).  I award that sum.

(vi)   Costs of technical aids

6.30  D disputes the claims for some of the items such as the need to purchase a television, TV programme boxes and a computer tablet.  I accept D’s submissions that the former two would only be required were P to move into a newly-rented flat in Hong Kong and that a computer tablet is probably not necessary for P.  The other differences are accounted for by the multiplier issue.  I adopt D’s figure.

6.31  The costs are quantified on the basis that the technical aids are to be procured in Hong Kong.  Mr Ho has not asked for a discount on the basis that they are to be procured in the Mainland.

(vii)   Costs of medical consumables

6.32  The difference between the parties is accounted for by the multiplier issue.  I adopt D’s figure.

6.33  The costs are quantified on the basis that the medical consumables are to be procured in Hong Kong.  Mr Ho has not asked for a discount on the basis that they are to be procured in the Mainland.

(viii)   Costs of non-medical equipment

6.34  D accepts that this claim should be allowed were P to move out of the nursing home but contends that they should be subject to a multiplier of 4 years. I accept the calculation set out at D’s Opening Submissions §40.  I award a sum of HK$42,327.  No discount is sought by Mr Ho on the basis that the equipment is to be procured in the Mainland.

(ix)   Costs of utilities

6.35  D accepts that this claim should be allowed were P to move out of the nursing home but contends that they should be subject to a multiplier of 4 years. I accept the calculation set out at D’s Opening Submissions §42.  I award a sum of HK$26,160.  No discount is sought by Mr Ho on the basis that such expenses are to be incurred in the Mainland.

(x)   Costs of transportation and socialization expenses

6.36  The difference is accounted for by the multiplier issue.  I accept D’s figure of HK$108,000.  No discount is sought by Mr Ho on the basis that costs are to be incurred in the Mainland.

(xi)   Costs of family members visiting P

6.37  As I am awarding damages on the basis that P will reside at her Guangzhou home, no claim is allowed under this head.

(xii)   Costs of medical treatment

6.38  The difference between the parties are three-fold.  The first is accounted for by the multiplier.  The second is accounted for by D’s contention that the need for clinical psychology and family therapy is not based on opinion of any medical expert: Yuen Hok Mo v VSL Hong Kong Limited & Anor, HCPI 275 of 2009, 6 January 2010 at §§16(ii)  and 20.  The third is D’s calculation adopted the average of the rates quoted by the experts whilst P adopted the highest.  I accept D’s submissions, in particular in the present circumstances where the medical treatment is to be procured in the Mainland (the costs of which are presumably lower than those in Hong Kong).  I adopt the figure of HK$503,720.

(xiii)   Costs of transportation (treatment)

6.39  P’s claim is based on 600 treatments at HK$500 per treatment.  Given the uncertainties on the treatment plan in the Mainland (as to the distance between P’s home and the treating doctors), I would make an award on a basis more generous than that offered by D.  I allow a sum of RMB100,000.

(xiv)   Costs of tonic food

6.40  For the reasons set out at §5.12 to 5.15 above, I allow a sum of RMB60,000.

(xv)   Costs of fund manager

6.41  In Lai Pui Ling v Ho Chi Keung [2016] 3 HKLRD 329, G Lam J (as he then was)  held at §69 that as the future loss to be awarded (around HK$5 million)  was not particularly large, there was no need to engage any fund manager costs.  P’s future loss claim in this case is not particularly high, and the future period (4 years)  is not particularly long.  I accept Mr Ho’s argument that this claim should not be allowed.

7.  Conclusion

7.1  In summary, I have assessed P’s claim as follows:

Head of Damage	HK$	RMB	Reference
PSLA	2,000,000		Section 4
Loss of Society	20,000		Agreed
Pre-trial loss and expense
Medical expenses	917,530	47,261	Section 5(i)
Traveling expenses	1,172	3,980	Agreed
PRC nursing home charges		352,297	Section 5(ii)
Tonic food		65,000	Section 5(iii)
Other special damages	1,280	111,624	Section 5(iv)
Partial loss of income of Wu		21,000	Agreed
Medical consultation (Sept 2022)	14,672	13,786	Section 5(iv)
Future loss and expense
Costs of case manager	264,600		Section 6(iii)
Costs of healthcare		1,728,000	Section 6(iv)
Costs of accommodation		200,000	Section 6(v)
Costs of technical aids	108,278		Section 6(vi)
Costs of medical consumables	159,918		Section 6(vii)
Costs of non-medical equipment	42,327		Section 6(viii)
Costs of utilities	26,160		Section 6(ix)
Costs of transportation	108,000		Section 6(x)
Costs of family visiting P	0	0	Section 6(xi)
Costs of future medical treatment	503,720		Section 6(xii)
Costs of transportation (treatment)		100,000	Section 6(xiii)
Costs of tonic food		60,000	Section 6(xiv)
Costs of fund manager	0	0	Section 6(xv)
Total	4,167,657	2,702,948

7.2  Mr Wright had asked for an exchange rate of HK$1.2 to RMB1, on the basis that the renminbi is weakening against the Hong Kong dollar over the last few months.  It seems to me that Mr Wright’s concern is mainly directed at the pre-trial expenses incurred in the Mainland.  As stated at Hong Kong Civil Procedure 2024 Note 6/2/5A, where a claim is based on tort, the principles to be applied in ascertaining the currency of loss are those of restitutio in integrum and reasonable foreseeability.  In so far as the pre-trial losses and expenses are concerned, they were incurred over a period (in particular the nursing home charges).  During the relevant period, the exchange rate fluctuated between 1.09 to 1.24 and there was a considerable duration whether the RMB-HKD exchange rate is below 1.20.  As no attempt was made by Mr Wright to show that his proposed exchange rate is a fair “weighted average”, I propose to adopt the course suggested by Mr Ho, namely to leave the issue of rate of conversion to the enforcement stage (if necessary): Chak Kak & Anor v Pacrim International Capital Inc, CACV 366 of 2007, 4 November 2008 §6.  I also note that it is open to the court to grant judgment in RMB: Lai Jianxing v Sakoma (HK)  Ltd & Ors, HCPI 757 of 2009, 9 September 2011 §§70-72.

7.3  There will be judgment for P against D in the sums of HK$4,167,657 and RMB2,702,948 together with interest on special damages at half judgment rate from the date of the Accident to the date of Judgment and interest on general damages at 2% from the date of the writ to the date of judgment.

7.4  I also make a costs order nisi that D is to pay to P the costs of this action (including any costs reserved)  to be taxed if not agreed.  P’s own costs are to be taxed in accordance with Legal Aid Regulations.