KOK WAI LEUNG v. HO TIN BUILDING MATERIAL LTD AND ANOTHER

HCPI 676/2017

[2022] HKCFI 1183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 676 OF 2017

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The trial of this personal injury case proceeded in the absence of the 1^st defendant. At the end of the trial, I gave judgment in favour of the plaintiff. These are my reasons.

BACKGROUND

2.  The accident in the present case happened on 5 December 2014 admittedly in the course of and arising out of the plaintiff’s employment with the 1^st defendant. On the day in question, the plaintiff was instructed by the 1^st defendant to deliver 16 pallets of bricks to the site occupied by Gee Lee Transportation Company (“Gee Lee”) at Sung Wong Toi Road, Kai Tak, Kowloon. Immediately prior to the accident, the plaintiff’s colleague, Mr Chong Ching Kit (“Chong”), was operating a forklift to stack up pallets of bricks, and the plaintiff was standing by as watch-out to ensure that the pallets were stacked properly. While Chong was retrieving the forklift after offloading, the upper pallet suddenly collapsed and the bricks fell onto the plaintiff.

3.  In its accident report dated 19 May 2015, the Labour Department observed that the 1^st defendant did not take any step to ensure the plaintiff’s safety while working at the site. There was no safe working method for how to keep the pallets in place. The workers carried out the work by their own experience. The plaintiff was not trained to transport this kind of pallets. He had never been engaged to transport this kind of pallets. There was no supervision on site. There was no information and instruction on how to arrange the pallets. The plaintiff did not possess the certificate to control fork-lift trucks. No one has instructed how the plaintiff should move the pallets before. The 1^st defendant also did not coordinate with the proprietor of Gee Lee on the transportation of the pallets before or on that day.

4.  The 1^st defendant was subsequently charged with and, on 6 October 2015, convicted of failure to ensure the safety and health of its employee contrary to section 6 of Occupational Safety and Health Ordinance (“OSHO”) (Case No KCS 17738/2015). Through counsel appearing for him before the magistrate, the 1^st defendant admitted the brief facts on which the charge was based, namely that:-

(1) no risk assessment was conducted beforehand and no safe working procedure on handling pallets of bricks was defined;

(2) no information, instruction, training or supervision was given to the plaintiff to ensure he totally understood the relevant hazards and work safely;

(3) the 1^st defendant failed to (a) provide and maintain a system of work for handling pallet of bricks that were, so far as was reasonably practicable, safe and without risks to health; and (b) provide such information, instruction, training and supervision as might be necessary to ensure, so far as reasonably practicable, the safety and health at work of the employee(s).

5.  In 2016, The plaintiff filed his claim for employees’ compensation against the 1^st defendant (Case No DCEC 2686/2016). On 18 January 2021, judgment was entered against the 1^st defendant for compensation payable in the net sum of HK$2,350,899.36 after taking into account the advanced payment in the sum of HK$585,056 (“the EC Judgment”).

6.  Not only has the 1^st defendant failed to satisfy the EC Judgment, but it has also failed to appear in the proceedings in this action since mid-2018. He was absent from the pre-trial review before this court.

7.  Interested in the outcome of the present action for obvious reason, the 2^nd defendant was joined to enable it to address the court on the issue of quantum. The role and function of the 2^nd defendant in the present trial is essentially to assist the court in coming to a correct assessment: see Wo Chun Wah v Chau Kwei Yin [2018] 3 HKLRD 897 at §50; Wo Chun Wah v Employees Compensation Assistance Fund Board (2019) 22 HKCFAR 495 at §45. The reality is that the plaintiff’s hope of compensation may have to rest on the 2^nd defendant in the not improbable event that enforcement of judgment against the 1^st defendant, if obtained, fails.

8.  The 1^st defendant was absent from the present trial. Satisfied with the affirmation evidence in respect of service, this court saw no other reason why the plaintiff should not be allowed to proceed.

LIABILITY

9.  The plaintiff’s case is that the accident was caused by the 1^st defendant’s negligence and/or breach of employer’s duties of care and/or breach of statutory duties under OSHO by reason of its failure to, amongst other things, carry out risk assessment on handling pallets of bricks; provide a safe system of work to safely deliver pallets of bricks; provide adequate training, instructions as well as supervision on how to deliver pallets of bricks safely and the risk involved in delivery of pallets of bricks.

10.  The 1^st defendant denies liability. It alleges that the plaintiff was a driver required only to unload the pallets from the vehicle onto the ground but not to stack the pallets. As such, he was also not required to stand by the side of the bricks to watch out if the pallets were stacked properly. The 1^st defendant also alleges contributory negligence in that the Plaintiff is said to have failed to attend to his own safety at work.

The principles

11.  The common law duty of the employer to act reasonably to ensure the safety of its employees at work needs no introduction. The duty is non-delegable. Whilst specific circumstances may justify leaving an employee experienced in the task in question to decide how to safely carry it out, the employer is generally bound to give positive thoughts and to adopt a proactive approach to protect the safety of his employees: see Lee Yam Kan v. Ng Pui Kuen [2016] 6 HKC 318 at 334B-335E; 335I; 338C.

12.  Further, the basis of liability to take steps, and hence negligence in case of failure to do so, is reasonable foreseeability of the risk of resultant injury. If the mode of work of the employee is known or reasonably foreseeable, so would the incidental risk of injury be if no step is taken. That would be so even assuming that the employee has not been instructed to carry the specific task or to do that in a specific manner or even where he may strictly be considered as acting outside the scope of his work.

13.  Pursuant to section 62 of the Evidence Ordinance, Cap 8, the 1^st defendant’s conviction is admissible in these proceedings as evidence of the facts on which the conviction was based. It shifts the burden to the 1^st defendant to show that it was not in breach of the duties under OSHO notwithstanding the conviction: see for instance Lee Yam Kan (above) at 325G-326I. The same may be said about the employer’s breach of its common law duty of care in line with such statutory duties: see Lee Yam Kan (above) at 333B.

The evidence

14.  The evidence of the plaintiff and Chong, which I accept, shows that the 1^st defendant either expected or reasonably foresaw that they would be supposed to work in the manner as they did at the site. The findings in the post-accident investigation by the Labour Department mentioned above support that.

15.  Upon the 1^st defendant’s absence, the witness statement of Chan Sze Pan adduced on its behalf must be disregarded. As such, the 1^st defendant did not even begin to discharge the burden of rebutting the factual basis of his criminal conviction, and thus liability for breach of similar duties for the purpose of the present action. Likewise, it did not come to substantiate the allegation of contribution negligence.

16.  Hence my finding of full liability of the 1^st defendant in causing the accident.

QUANTUM

Injuries and treatment

17.  Immediately after the accident, the plaintiff has transient loss of consciousness which was regained in minutes. He was admitted to Queen Elizabeth Hospital (“QEH”). Examination showed that he was fully alert with normal and reactive pupils, severe weakness of the upper limbs, paralysis of the lower limbs, absent sensation below the nipple line, lax anal tone, and tenderness at the mid-thoracic spine region.

18.  CT scan of cervical spine revealed fractures in the postero-inferior aspect of C5 vertebral body with posterior displacement, bilateral inferior facets of C5 posterior element, and left superior facet of C6 vertebra, grade one anterior spondylolisthesis at C5 over C6, and a 0.5 cm thick elongated hyperdense layer posterior to the C5 vertebral body fracture (likely to be a haematoma and soft tissue swelling) protruding into the spinal canal. CT scan of head, thorax, abdomen and pelvis did not show any traumatic lesions.

19.  MRI of the cervical spine confirmed fracture at the postero-inferior aspect of the C5 vertebral body extending to the C5 inferior end plate and posterior displacement of the fractured bony fragment. The displaced bony fragment, herniated hemorrhagic C5/6 disc and epidural haematoma from C5/6 level to C7/T1 level caused cord compression with cord oedema from C3 to C7 levels. The Plaintiff’s liver function tests were normal on admission.

20.  Steroid therapy and spinal operation (decompression and anterior spinal fusion) were performed, after which he was put under intensive care with intubation and mechanical ventilation. The post-operative course was complicated by nosocomial infection and convulsions, for which antibiotics and anticonvulsants were given. Further CT brain revealed hypodense areas at the left corona radiata and internal capsule representing cerebral infarcts.

21.  Electroencephalography showed moderate cerebral dysfunction with generalized suppressed cortical activity, but no epileptic discharges. The plaintiff had episodes of asystole cardiac arrest and were given cardiopulmonary resuscitation. As he required prolonged mechanical ventilation, tracheostomy was performed.

22.  In early 2015, the plaintiff again had nosocomial infection complicated by septic shock and acute renal failure, which were successfully treated. He developed serial epileptic seizures entailing loss of consciousness, uprolling eyeballs, left facial twitching and tonic convulsions of the limbs. Electroencephalography showed continuous periodic lateralizing epileptiform discharges in the right temporal region. CT brain revealed a right parietal lobe abscess, the primary source of which could not be identified. Neurosurgery (craniectomy) was performed to remove the brain abscess. Antibiotics and anticonvulsants were administered. The epileptic seizures were under control. During the period when the plaintiff had the systemic and cerebral complications, the serum levels of his alkaline phosphatase (a liver enzyme) were elevated, and remained just above the normal limits when the complications resolved. HBsAg was positive but the HBV DNA level was low at only 2.75 x 103 IU/mL. He was started on Lamivudine.

23.  Towards the end of 2015, the plaintiff was transferred to Kowloon Hospital (“KH”) for rehabilitation. Physiotherapy, occupational therapy, speech therapy and psychological therapy were prescribed. He was transferred to QEH a few times for management of fever, cervical spinal cord oedema, and pneumonia by mid-2016. The psychologists noted that with his positive coping attitude and family support, he did not have significant emotional distress. He was discharged home on 8 June 2016 (i.e. about 18 months after the accident).

24.  After discharge, the plaintiff has been attending the following departments for follow-up:-

(1) Orthopaedic Clinic of QEH: He attends the clinic at 3-monthly intervals. There has been no significant change in his tetraparesis.

(2) Orthopaedic Department of Prince of Wales Hospital (“PWH”): He underwent a tendon transfer operation for the right upper limb in November 2016. As a result, his right hand has become more functional. He is now followed up at the Hand Clinic 4-monthly.

(3) Neurosurgery Clinic at QEH: He attended the clinic for control of epilepsy. Except for an episode of epileptic seizures probably triggered by sepsis in May 2018, he has had no attacks since June 2015. The anticonvulsant medications were discontinued in October 2018.

(4) The Orthopaedic Department and the Surgery Department of Queen Mary Hospital (“QMH”): In April 2018, he developed a deep sacral pressure sore which failed to heal with dressing due to faecal soiling. In May 2018, he developed fever due to an infected sacral sore, followed by an epileptic seizure, for which he was admitted to QMH. The orthopaedic surgeons performed debridement and skin grafting for the deep sacral sore, and the surgeons carried out a colostomy so that the faeces were directed away from the anus, thus avoiding soiling of the sacral sore. He is now followed up at the Orthopaedic Clinic and the Surgery Clinic at 3-monthly intervals.

(5) Urology Clinic at QEH: He is now on an indwelling urinary connected to a urinary bag. The catheter is changed monthly by his wife. He was discharged from the clinic in mid-2018;

25.  In the initial period following discharge from KH, he also received physiotherapy and speech therapy at Yan Chai Hospital (“YCH”) as well as occupational therapy and speech therapy at KH.

Medical expert opinion

26.  With leave of the court, the plaintiff and the 2^nd defendant have adduced the following medical expert evidence:-

(1) joint neurological report dated 20 February 2019 of Dr. Yu Yuk Ling (engaged by the plaintiff) and Dr. Brian Choa (engaged by the 2^nd defendant) (“Joint Neuro Report”); and

(2) joint occupational therapy evaluation report dated 12 June 2019 of Mrs. Alice Tsang (engaged by the plaintiff) and Mrs. Shelly Chow (engaged by the 2^nd defendant) (“Joint OT Report”).

The above reports are adduced as evidence without the makers called.

27.  The neurological experts carried out joint examination of the plaintiff on 14 January 2019. In their report, they recounted the following symptoms and disabilities of the plaintiff:-

(1) The plaintiff is right-handed. The function of some shoulder muscles and the capacity to flex both elbows were preserved. After the tendon transfer operation, he has acquired more functions in his right hand. He can now flex his fingers and his thumb is fixed in a slightly flexed position. His right wrist is now slightly flexed and not over-extended. He can feed himself if a spoon is strapped to his right hand. He can strike the icons, numerals and letters on the screen of electronic tablet. He remains unable to write effectively and cannot hold chopsticks. He uses his right hand to operate the joystick of his electric wheelchair. The left hand remains non-functional.

(2) The plaintiff’s legs lack voluntary movement or involuntary painful spasm. He can sit unsupported. He cannot turn in bed by himself. He cannot transfer between bed and wheelchair. He cannot lift up his buttock by supporting his hands on the arms of the wheelchair. He cannot stand even with support. He cannot walk.

(3) The plaintiff has severe sensory loss of the upper limbs and below the upper thorax level. He is not able to feel the temperature of bath water or hot objects, but he does not have pain in the limbs or trunk. He does not have pain at the cervical operative site. He has experienced pressure sores at the sacral region but none since late 2018.

(4) The plaintiff has no bladder sensation. Indwelling urinary catheterization is performed by his wife about once a month. Since discharge from KH, he has not had urinary tract infection. He also has bowel dysfunction. There is no sensation for bowel movements. He moves his bowels every day without the aid of laxatives and suppositories. The colostomy bag is changed every 3 days. He also lost his sexual function.

(5) In May 2015, the plaintiff developed serial generalized epileptic seizures because of brain abscess. With surgical evacuation of the abscess followed by anticonvulsant therapy, he has not had further attacks since. The anticonvulsant therapy was discontinued 4 months before the joint examination. He also blurred vision on his left side.

(6) The plaintiff has to depend on his wife and domestic helper in his activities of daily living. He requires full assistance from his carers for bathing, showering, bowel and bladder management, turning in bed, and transfer from chair to bed and commode chair. He could manoeuvre his electric wheelchair. He uses taxi and rehabilitation bus for travel. He goes to park and shopping malls on his manual or electric wheelchair, accompanied by his wife or domestic helper. That was how he attended the present trial as well.

28.  The experts are ad idem in the following respects:-

(1) He sustained severe trauma of the cervical spine in the accident, which led to severe weakness of his upper limbs and complete paralysis of the lower limbs, sensory deficits, and sphincter dysfunction (bladder, bowel and sex) mentioned above.

(2) His epilepsy and left homonymous hemianopia are the direct result of the cerebral infection.

(3) His neurological deficits are permanent.

(4) The combined percentage of permanent impairment of the whole person is 87%. The Plaintiff is unable to take up any gainful employment at all.

(5) He has received the appropriate treatment at the public hospitals. There is stable fusion in the affected cervical vertebrae. Further spinal surgery is not necessary. However, he is prone to develop psychological disturbance, as well as medical complications such as urinary tract infections, septicaemia, and renal stones. Thus, he requires certain medical and paramedical services. He also has epilepsy but anticonvulsant therapy is not required at the moment.

29.  The plaintiff was aged 45 at the time of the joint examination. The estimated life expectancy of 45 year-old males in the general population of Hong Kong at the time was 37.77 years. Taking into account the spinal cord trauma, the plaintiff’s life expectancy has been reduced to 24.7. In other words, he is expected to live up to the age of 69.7.

30.  The experts differ in respect of whether deduction should be made to the plaintiff’s life expectancy on account of his carriage of Hepatitis B. Dr Choa considers that further reduction of 6% should be applied which further reduces the Plaintiff’s life expectancy to 23 years (i.e. life up to the age of 68). Dr Yu commented on the overseas study referred to by Dr Choa. He also noted that the plaintiff was put on specific anti-Hepatitis B virus drug, which was highly effective in suppressing the risk of cirrhosis and cancer. These tend to cancel each other so that no further reduction is recommended.

31.  In respect of occupational assessment, the Plaintiff was examined by Mrs. Tsang and Mrs. Chow on 14^th December 2018. The experts identify the following problems and actions required in the plaintiff’s case:-

(1) The Plaintiff’s tetraplegia has impaired his active control of upper and lower limbs including manipulative skills and mobility. He would need carer(s) for all activities, assistive devices for some degree of independence and autonomy and for ease and safety of care, therapeutic input and equipment for maintenance of residual strength and control and reducing chance of deterioration.

(2) His sensory function was impaired so that he is unable to detect the risk of developing pressure sores or other abrasions. He would need anti-decubitus items, provision of optimal temperature and humidity, dressings and wound cleaning consumables in case of pressure sores or abrasions, provision of carer with training for skin care knowledge.

(3) He suffers stiffness of jaw which affects chewing and dental hygiene. He would need dental consultation for jaw alignment which may improve chewing and the provision of food blender.

(4) His double incontinence requires consumables e.g. foley catheters, urine bags, stoma care, etc and professional input/carer for application of the above.

(5) He requires total assistance in activities of daily living and constant support for instrumental activities of daily living.

(6) He has lost all work capability and requires vocational or avocational pursuits. He also lacks socialisation and vacation due to severity of his condition and requires extra expenditure for socialisation and vacation.

(7) He has difficulty with transportation and needs to be accompanied on outings and requires extra expenditure for transportation.

(8) He has difficulty in resuming his pre-accident DIY home improvement, and would need extra expenditure for DIY projects.

Multipliers

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 Hepititus 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)).

Pain suffering and loss of amenities (PSLA)

34.  The plaintiff was born on 23 November 1973. He received secondary education up to Form 3. His wife previously worked as a freelance wedding make-up artist but has ceased working after the accident. They have two children, the elder son born in 2001 and the younger daughter born in 2004.

35.  The plaintiff grew up in Tsing Yi Fishermen’s New Village (“the Village”), said to be a closely knitted neighbourhood, which is managed by The Tsuen Wan Fishermen’s Better Living Co-operative Society Limited (“the Co-operative Society”). He used to be one of the leaders in the Village and took responsibility in the welfare of the Village. He was sporty before the accident and often participated in dragon boat sports.

36.  After discharge from hospital, the plaintiff could not return to live in the Village because it is not wheelchair accessible. He and his family had to move to a rented property in Tsuen Wan. At the time of the trial, the family resides at another rented property in City Point, Tsuen Wan (“the City Point Property”).

37.  In terms of category, the plaintiff falls into the disaster category of victims so illustrated in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. For actual assessment of damages for PSLA, counsel referred to the following cases as comparables:-

(1) Ta Xuong v. The Incorporated Owners of Sun Hing Building, HCPI 496/1995 (30 October 1997) where HK$2,000,000 was awarded;

(2) Chan Yuet Lui Rebecca v. The Ritz-Carlton Ltd, HCPI 658/2000 (7 January 2002) where HK$1,700,000 was awarded;

(3) Li Xiao You v. Fugro Geotechnical Services (HK) Ltd, Aoki Corp and Kin Lee Ko Construction, HCPI 1287/1999 (3 May 2002) where HK$1,700,000 was awarded;

(4) Ng Tat Kuen v. Tam Che Fu [2019] 4 HKC 533 where HK$2,250,000 was awarded.

38.  Considering the age, gender, personal background, injuries and post-accident circumstances as well as the adjustment necessitated by the time lapse between the above cases and the present one, I agree with counsel that the plaintiff’s case is comparable to that in Ng Tat Kuen. Both the plaintiff and the 2^nd defendant proposed an award of HK$2,250,000, which I find is reasonable.

Loss of Society and Services

39.  The Plaintiff claims for loss of society and services to his family due to his injuries pursuant to section 20C of the Law Amendment and Reform (Consolidation) Ordinance, Cap 23. In light of the seriousness of his injuries and disabilities, the sum of $150,000, which is the applicable statutory maximum at the relevant time (ie the time of the accident), would be reasonable: see Ng Tat Kuen (above) at §§98-101; Lai Chi Wai v. Tong Hung Kwok [2020] 6 HKC 1 at §138. The 2^nd defendant supported that.

Pre-trial loss of earnings

40.  The plaintiff had worked as a driver for more than 20 years prior to the accident. He held driving licence for private car (class 1), light goods vehicle (class 2), medium goods vehicle (class 18), heavy goods vehicle (class 19), light bus (classes 4 and 5) and bus (classes 9 and 10). The Plaintiff was 41 years old at the time of the accident and is now 48. It is more likely than not that he would have continued to work as such until now but for the accident.

41.  The plaintiff’s pre-accident monthly earning was HK$26,202. He expected his income would have been increased in line with the Consumer Price Index (“CPI”). He accepted the 2^nd defendant’s proposal that the overall inflationary adjustment from the time of the accident to mid-2020 to be about 10% or HK$26,202 x 1.1 = HK$28,822.20. This court takes notice of the intervening coronavirus pandemic, which compromises further upward adjustment. On this basis, the median pre-trial monthly earnings could be taken to be HK$26,202.00 + HK$28,822.20 / 2 = HK$27,512.10. The plaintiff and the 2^nd defendant indeed proposed to adopt this as the base for calculating the pre-trial loss of earnings. Hence HK$27,512.10 x 86 months = $2,366,040.60.

42.  It follows that the pre-trial loss of MPF contributions should be HK$2,366,040.60 x 5% = HK$118,302.03.

Future loss of earnings

43.  Applying the work multiplier and the monthly earnings of HK$28,822.20, the future loss of earnings would be HK$28,822.20 x 12 x 13.53 = HK$4,679,572.39. Again the plaintiff and the 2^nd defendant proposed this as the award under this head.

44.  The future loss of MPF contributions would then be HK$4,679,572.39 x 5% = HK$233,978.62.

Pre-trial miscellaneous pecuniary loss

Medical and other expenses

45.  The plaintiff and the 2^nd defendant are ad idem as to the pre-trial medical and other expenses up to mid-2020 in the rounded sum of HK$2,100,000.

46.  Further expenses have been incurred since mid-2020 until now, namely:-

(1) rental for the City Point Property at the sum of HK$380,000 (HK$19,000 x 20 months); and

(2) full-time domestic help at the rate of HK$5,000 per month, and thus HK$100,000 (HK$5,000 x 20 months).

47.  Taking into account the above further sums, the total pre-trial medical and other expenses should be HK$2,100,000 + HK$380,000 + HK$100,000 = HK$2,580,000. Again the 2^nd defendant supported that.

Loss of earnings of the plaintiff’s wife

48.  As mentioned, the plaintiff’s wife gave up her job as freelance wedding make-up artist to take care of the plaintiff after the accident. According to the plaintiff, she lost an average monthly income of HK$8,000.

49.  The appropriate award on account of such care has to be broadly assessed, having regard to all the circumstances such as the nature of the injuries of the plaintiff, the nature and extent of the care required and provided, the nature and remuneration of the employment relinquished by the carer and the cost of obtaining the requisite care on a commercial basis: see Lai Pui Ling v Ho Chi Keung [2016] 3 HKLRD 329 at §59. This court is also prepared not to under-estimate the significance of the support of family member care above mere utility perspective.

50.  The 2^nd defendant was prepared to accept the value of such service at HK$5,000 per month, with reference to that for a domestic helper, and a total sum of HK$330,000. The plaintiff now agreed with the 2^nd defendant.

Future miscellaneous pecuniary loss

51.  Again this is a question of reasonableness in the circumstances: see Lai Chi Wai (above) at §§105-109. This depends on the nature and extent of the plaintiff’s needs and whether the proposed items are reasonable having regard to such needs. Cost of the provision and subsequent replacement(s) during the expected remaining lifespan of the plaintiff would be included.

Medical aids and equipment

52.  Considering the opinion of Mrs. Tsang, the plaintiff agreed to exclude the following items from the claim:-

(1) Grab rails by shower and toilet;

(2) Drop down grab rail by the toilet;

(3) Mobile phone / iPad (and the monthly service plan);

(4) Bluetooth;

(5) CD player and CDs;

(6) Additional latex gloves, applicator sticks 7”, antiseptic sterile packs, dressing kits; cotton wool balls sterile; sterile gauze; and micropore.

53.  For the remaining items which are agreed to be necessary, the experts provided different annual cost estimates. By applying the average and the less expensive alternative as well as the life multiplier of 16.39 (above), the plaintiff and the 2^nd defendant proposed the final adjusted sum of HK$1,800,000.

Future medical expenses

54.  Based on the current treatment plan with the Hospital Authority, the plaintiff claims a total sum of HK$61,830 for future medical consultations (at QEH and QMH) and hospitalization.

55.  The experts agree that the plaintiff should continue his physiotherapy and occupational therapy treatments. What needs to be considered is whether the plaintiff should reasonably be expected to turn to the public or private sector for such treatments.

56.  It was pointed out that the plaintiff receives occasional physiotherapy and occupational physiotherapy on a need basis in the public hospitals which is considered to be insufficient. Whether the public hospitals could accommodate the frequency of therapies recommended by the experts was doubted. Home therapy to save the plaintiff from travel was also proposed. It was therefore proposed that the plaintiff should be given the opportunity to consult the private sector for such treatments.

57.  The average cost of HK$700 and HK$1,000 per session of physiotherapy and occupational therapy respectively was adopted. Based on the frequency recommended by Mrs. Tsang, the cost would be as follows:-

	Physiotherapy	Occupational Therapy
First 3 months (26 sessions)	HK$18,200	HK$26,000
Second 3 months (13 sessions)	HK$9,100	HK$13,000
Third 3 months (6 sessions)	HK$4,200	HK$6,000
Fourth 3 months (3 sessions)	HK$2,100	HK$3,000
Thereafter (4 sessions per year)	HK$43,092	HK$61,560
Crisis	HK$5,600	HK$10,000
Total	HK$82,292	HK$119,560

58.  The plaintiff also claims a sum of HK$1,000 per month for Chinese medicine. The principles in Yu Ki v. Chin Kit Lam [1981] HKLR 419 at 422 apply. Concurrent conventional and Chinese medical treatments have been accepted as a reasonable approach in the local society: see Mui Ling Kwan v Wong Yin Wah [1973] HKLR 465. In the circumstances of this case, this is not unreasonable. Applying the life multiplier of 16.39, the award would be HK$1,000 x 12 x 16.39 = HK$196,680.

59.  The total future medical expense, according to the above projection, would be HK$(61,830 + 82,292 + 119,560 + 196,680) = HK$460,362. However, the plaintiff accepted to reduce the amount claimed to HK$458,362.

Future cost of care and attention

60.  The occupational therapy experts agreed that two live-in domestic helpers with training from registered nurses or therapists should be engaged to fulfil the duties required. The Plaintiff was prepared to adopt the lesser of the estimates by the experts in the assessment. The future cost of domestic helpers would be HK$154,350.24 x 16.39 = HK$2,529,800.43.

61.  It is not unreasonable for the plaintiff’s wife to continue to spare time to help take care of the plaintiff, particularly when any one of them would be on vacation leave, and to supervise the helpers. The plaintiff agrees with the 2^nd defendant’s proposal of a monthly rate of HK$2,000 as her loss. The future value of care of the plaintiff’s wife would therefore be HK$2,000 x 12 x 16.39 = HK$393,360.

62.  It is Mrs Tsang’s opinion that a case manager should be engaged to assist the plaintiff’s wife in coordinating services and monitor personnel. The ultimate goal is to assist the plaintiff and his wife through times when they embark on a good lifestyle with the plaintiff’s disability in order to reduce stress. This has been considered as reasonably necessary: see Ta Xuong (above). Based on the needs recommended by Mrs Tsang, the plaintiff claims a sum of HK$174,000 which the 2^nd defendant agrees.

63.  The future cost of care and attention adds up to HK$(2,529,800.43 + 393,360 + 174,000) = HK$3,097,160.43.

Future cost of alternative accommodation and related expenses

64.  The City Point Property has usable area of 554.92 sq ft. The experts agree that a flat with more space would ensure the well-being of the plaintiff and his family. Mrs Tsang opined that the minimum required usable space is 882.32 sq ft.

65.  The parties agreed to adopt HK$32 per square foot of the saleable area as the basis for assessment. This has the support of for instance Chan Fung Ting v Lam Chun Kei [2019] HKCFI 2336. The future rental expenditure of alternative accommodation would be HK$32 x 882.32 x 12 x 16.39 = HK$5,553,110.32.

66.  In Ng Tat Kuen (above), the plaintiff’s life multiplier was 8.61 and the court found that the plaintiff would likely move at least twice before the end of his natural life, i.e. every 4 years. By the same token, counsel proposed that the plaintiff is likely to move at least 4 times during his remaining lifetime. Cost of removal would have had to be incurred: see for instance Lai Chi Pon v Toto Steel & Iron Works Ltd (No 2) [1997] 2 HKC 741 (also adopted in Ng Tat Kuen). On this basis, the miscellaneous incidental expenses such as estate agency fee, stamp duty, legal fee, removal cost would be HK$32 x 882.32 x 4 = HK$112,936.96.

67.  Modification of the plaintiff’s residence is projected. Mrs. Tsang estimated such cost to be $100,000. This was also the lump sum awarded in Ng Tat Kuen. On the basis that the plaintiff would move 4 times during his remaining lifetime, the cost of modification would be HK$400,000.

68.  The total cost for alternative accommodation and the related expenses would therefore be HK$(5,553,110.32 + 112,936.96 + 400,000) = HK$6,066,047.28.

69.  At one point, it was contended that credit should be given to the possible rental value of the pre-accident residence of the plaintiff if let while not occupied by the family. However, the plaintiff’s pre-accident residence is regulated by the Co-operative Society, and the tenancy agreement between the then Governor of Hong Kong and the Co-operative Society back in 1990 limits the properties to private residential purpose to its members only. The By-Laws of the Co-operative Society provides that a member must be a fisherman based at Tsuen Wan or resident of the Village. The agreement between the Plaintiff and the Co-operative Society also provides that the plaintiff’s residence could only be used as the residence of the him and his family, and no underletting or transfer to non-member would be permitted unless with prior approval from the Co-operative Society. In the circumstances, it would be unrealistic to factor in possible rental income from the Plaintiff’s pre-accident residence in the assessment of this item of claim for the purpose of mitigation.

Future cost of transportation

70.  The experts agreed that the plaintiff would incur an additional sum of HK$2,000 per month on transportation. This is reasonable. Applying the life multiplier of 16.39, the future cost would be HK$2,000 x 12 x 16.39 = HK$393,360.

Future cost of socialization

71.  The plaintiff claims for expenses for socialisation activities and community re-integration outside of his home environment that were necessitated by the impairment of his mobility. Special arrangement may have to be made. Such claim had the endorsement of the court in Heil v Rankin [2001] QB 272 and, in the local context, Lai Chi Wai (above). Using HK$10,000 per year as the base, and applying the life multiplier of 16.39, this item of future cost would be HK$10,000 x 16.39 = HK$163,900.

Future cost of nourishing food

72.  The plaintiff and the 2^nd defendant agree on the future cost of nourishing / tonic food in the lump sum of HK$20,000.

Summary

General Damages	(HK$)	Total
PSLA	$2,250,000.00
Loss of society and service	$150,000.00	$2,400,000.00
Past Pecuniary Loss
(1) Pre-trial expenses	$2,580,000.00
(2) Pre-trial loss of earnings	$2,366,040.60
(3) Pre-trial loss of MPF contribution	$118,302.03
(4) Loss of care by P’s wife	$330,000.00	$5,394,342.63
Future Losses
(1) Future loss of earnings	$4,679,572.39
(2) Future loss of MPF contribution	$233,978.62
(3) Future expenses on medical aids	$1,800,000.00
(4) Future medical care	$458,362.00
(5) Future care and attention	$3,097,160.43
(6) Alternative accommodation	$6,066,047.28
(7) Future cost of transportation	$393,360.00
(8) Cost of socialisation	$163,900.00
(9) Tonic food	$20,000.00	$16,912,380.72
	Total	$24,706,723.35

Interest

73.  The plaintiff is entitled to interest on general damages at 2% per annum from the date of writ (27 June 2017) until now, ie HK$(2,250,000 + 150,000) x 2% x 54.5/12 years = HK$218,000. Interest on special damages runs at half judgment rate, ie 4% per annum, from the date of accident (5 December 2014) until now, ie HK$(2,580,000.00 + 2,366,040.06 + 118,302.03 + $330,000.00 – $585,056) x 4% x 86/12 = HK$1,378,662.01.

74.  The Plaintiff acknowledges that in seeking to enforce the judgment against the 2^nd defendant, the plaintiff will not be entitled to payment of interest under section 20B(3) of Employees Compensation Assistance Ordinance, Cap 365.

ORDER

75.  For the above reasons, this court gave judgment in favour of the plaintiff against the 1^st defendant for the sum of HK$24,706,723.35 together with interest in the total sum of HK$1,596,662.01 but giving credit to the advanced payment in the sum of HK$585,056. Hence a total sum, including interest, of HK$25,718,329.36. Interest from judgment shall run at the judgment rate on the sum of HK$24,121,667.35 (ie HK$24,706,723.35 – HK$585,056) until full payment.

76.  This court also ordered the 1^st defendant to pay the plaintiff’s costs of the action, including any costs reserved, to be taxed. No order was made as to the costs between the plaintiff and the 2^nd defendant: see Wo Chun Wah (2019) 22 HKCFAR 495 at §46.