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HCA001151/1985
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
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Leung Sai-kui by his next friend, Lai Yan-mei
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Plaintiff |
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and
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F. Zimmern & Co. (a firm) |
Defendant |
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Coram: Master Suttill in Chambers
Date of Hearing: 23rd to 27th June, 1986 and 3rd July, 1986.
Date of Delivery: 11th July, 1986.
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ASSESSMENT OF DAMAGES
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1. In 1975 the plaintiff was a daily paid carpenter working on construction sites. On the 28th December 1975 he was at work on a site for one Kai Tai Construction Company (Kai Tai). During the course of his work he stepped onto a board. The board collapsed and the plaintiff was thrown onto the floor some 8 feet below.
2. The plaintiff was grievously injured. I will describe these injuries in more detail later.
3. The plaintiff was granted legal representation by the defendants on legal aid.
4. A writ of summons was taken out by the defendants on the 24th August 1978 by virtue of which an action for negligence was commenced against Kai Tai.
5. The defendants were dilatory in pursuing that action and on 31st January 1984 a summons to dismiss the action for want of prosecution was taken out.
6. That summons was heard by Mayo, J. on 29th and 30th March 1984 who, on the latter date, with much regret, dismissed the action against Kai Tai. His decision concludes with the following direction:-
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"that (the plaintiff) be advised that it is possible that he may have a cause of action in negligence against Messrs. Zimmern & Co."
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7. The Court of Appeal could find no fault with the reasoning of Mayo, J. nor with the conclusion at which he arrived and on the 11th May 1984 dismissed the appeal against his order dismissing the action.
8. The plaintiff was again granted legal aid and on 19th February 1985 a writ was issued against the defendants thereby commencing an action against them for negligence by their dilatory pursuit of his action against Kai Tai.
9. No defence was served by the defendants and on 30th April 1985 interlocutory judgment was entered against them with damages to be assessed.
10. The assessment was before me on the 23, 24, 25, 26, 27th June 1986 and the 3rd July 1986.
11. The assessment was reserved until today.
12. As a result of his injury caused by the fall, the plaintiff was taken to the Neurological Unit at Queen Elizabeth Hospital. A report by Dr. M.K. Lee of that unit, written on 18th January 1977, shows that on admission the plaintiff was drowsy but responded to simple commands. Pupils were equal and reactive. There was upper motor neurone type of left facial palsy and left hemiparesis with left extensor plantar response. There was periorbital swelling over the right eye and a 1" laceration at the left occipital region. X-ray of skull showed no evidence of fracture and x-ray of lumbar spine revealed a compression fracture of L1 vertabra.
13. A clinical diagnosis of right cerebral contusion was made and the plaintiff was initially treated conservatively by head injury observation and the laceration was sutured. However, the condition of the plaintiff remained static with no improvement after admission and a cerebral angiogram was done on 9.1.76 which revealed a space occupying lesion in the right cerebrum. On 14.1.76, a right temporoparietal craniotomy was done with a spiration of right intracerebral haemstoma. Subsequently the plaintiff made a steady recovery and was discharged to Kowloon Hospital on 6.2.76 for convalescence and physiotherapy. He was finally discharged home on 9.3.76.
14. As a result of this injury the plaintiff had residual left hemiplegia and post traumatic epilepsy which was controlled with anticonvulsant.
15. After a period at home the plaintiff was examined by Dr. Fali Shroff. This was on 20th May 1977. In his report of 2nd June 1977 (Ex.8) Dr. Shroff stated that the plaintiff complained of
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a)
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attacks of left sided convulsions
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b)
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incontinence of urine and faeces, initially
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c)
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fits of violence
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d)
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mild left side headache associated with vertigo. |
16. The plaintiff appeared to be bright and alert. He spoke fluently and quite intelligently. However his left limbs were found to be very spastic with marked clonus.
17. He could just manage to walk about in his quarters with the help of a stick. As his right limbs were normal in every respect. Dr. Shroff thought that he ought to be able to perform simple tasks at home such as feeding himself or taking a shower. Dr. Shroff concluded that the spasticity and weakness of the plaintiff's left limbs was not likely to improve in the future.
18. Three years and four months passed by. On 23rd September 1981 the plaintiff was again seen by Dr. Shroff.
19. He reported complaints similar to these in his previous examination.
20. Dr. Shroff diagnosed an improvement in the control of the plaintiff's epileptic fits. At page 2 of his report dated 2nd October 1981 (Ex.9) Dr. Shroff makes this telling observation.
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"With regard to the weakness and spasticity of his left limbs the invaluable role of physiotherapy occupational therapy, and other methods of rehabilitation must be stressed. Exercise re-education, the provision where appropriate of walking aids, toe-raising springs or calipers and other appliances adaptation to the home and domestic environment, all these and many more are invaluable.. Many such patients can be helped to resume a useful life in society despite residual disability. This is particularly true in this case, as Leung Sai Kui is relatively young."
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21. Two more years passed by. Then on 2nd November 1983 the plaintiff had a sudden severe convulsion lasting for an hour.
22. He was taken again to the Neurological Unit at Queen Elizabeth Hospital.
23. His blood pressure was 180/110 on admission. A C. T. brain scan showed infarction involving right anterior cerebral and middle cerebral arteries territories. He was treated and discharged on or about the 26th November 1983 on treatment by anti-convulsant and anti-hypersensitive agents.
24. On 29th November 1983 the plaintiff was examined by Dr. Edmund M. T. Cheung, who was PW3 in the assessment.
25. Dr. Cheung read the reports of Dr. Lee and Dr. Shroff to which I have already alluded.
26. Dr. Cheung saw that since the convulsion on 2nd November the plaintiff's way of talking had deteriorated. He had become very slow and drowsy. Walking was now impossible, as his limbs were very weak.
27. The plaintiff was unable to walk, he was dragged into the room because of the stiffness and weakness of his limbs.
28. He spoke with a slurred voice, response was very slow. He was able to give his own name and the name of his wife. Further conversation was untelligable.
29. He claimed that he was not able to see well and made mistakes in counting fingers placed 3 feet from him.
30. His eyes were squinted as his right eye could not move towards the left side.
31. His gums were red, swollen and infected.
32. His right hand was strong, but movements were clumsy. His right leg was also clumsy.
33. His left arm and left hand were very stiff and no voluntary movement was possible. His left leg was also stiff but he was able to kick out his left leg when asked to.
34. Dr. Cheung concluded his report by saying that the plaintiff would require full time care and attention either at home or in an institution for the rest of his life.
35. It was shortly after this that the summons to dismiss the action was taken out and, as described earlier, was acceded to.
36. From June 1984 the plaintiff's, affairs were placed in the hands of the Legal Aid Department.
37. Since the accident the plaintiff had lived with his wife and daughter (born after the accident) in public housing at Room 340, 3/F Block 42 Tsz Wan than Estate Kowloon.
38. He was visited and examined there by Dr. Cheung on 2nd October 1984.
39. The plaintiff sat on a arm chair during the examination. His blood pressure was 120/80. He was not able to stand up. His neck was stiff in fact all the four limbs were stiff, but worse on the left side. Vision of his right eye was poor, but the left eye was better being able to count fingers at 4 feet. His pupils were very small and Dr. Cheung was not able to see his eye ground (fundi).
40. His left upper limb was stiff and useless. He was able to move and lift it up a few inches. His left leg was better than the left arm, but was not able to straighten the leg in standing.
41. His right arm and right leg were strong, but the control was poor.
42. He had a tube connecting his penis to a receptacle as he was not able to control his bowel and his bladder.
43. The examination showed that the plaintiff's condition had changed very little since Dr. Cheung's previous examination in November 1983. Movement on his left side was worse than the previous occasion.
44. Dr. Cheung concluded that the plaintiff was disabled mentally and physically and would require full time nursing care at home or in an institution. He was not expected to take up any work or occupation.
45. One aspect of the deterioration in the plaintiff's condition after 2nd November 1983 was the damage to his vision.
46. On 13th March 1986 the plaintiff was examined by Dr. William J. Heffernan, an eye specialist. I take his conclusions, set out below, to be the definitive description of the condition of the plaintiff's eyesight.
47. There was no doubt in his mind that the plaintiff had suffered a severe visual disability in both eyes following injuries received in the accident on December 28, 1975. There was clearly damage to the Visual Perception System. Examination, he said, proved most difficult and aside from the meiosed pupils, no evidence of focal eye damage was noted. However it was clear that the Intra-cranial Visual System was greatly impaired.
48. He considered that the visual defect in each eye was in the order of some 60 to 70% and was permanent. Further deterioration is unlikely.
49. According to Dr. Peter H.T. Wu, who was D411 at the assessment, the plaintiff also suffers from left homonymous hemianopia which is a loss of vision on the left side of each eye.
50. The plaintiff was still living at Tsz Wan Shan when he was visited by Dr. David T. Lee who was PW2 in the assessment. This was on 30th January 1986. The plaintiff was taken to Canossa Hospital on 24th April 1986 where he was examined by Dr. A.3. Hodgson. The combined report of the two doctors was issued on 30th May 1986. This report was elaborated upon by Dr. Lee in evidence before me.
51. The combined effect of the report and Dr. Lee's evidence is as follows.
52. The plaintiff had constant hiccups and spoke with a slurring of speech. There was no active movement over his left arm with elbow contracture and he could move a little of his left leg. Right hand co-ordination was also disturbed and he could not control this properly.
53. He could see from a distance of two feet, one or two fingers on both eyes.
54. Both sides of his face were symetrical. He did not have a normal facial expression, that is to say his face was expressionless.
55. The Vestibular Nerve was disturbed and consequently, he felt giddyness.
56. His tongue could protrude towards the left side but he had difficulty in protruding to the right side. The tongue does not protrude the whole time.
57. He cannot walk due to loss of control of his left leg and he also has a flexion contracture of his left elbow. Jerks were not elicited over either side and ankle jerks were not elicited over either ankle. Brain damage was not complete as there was flexor when soles of feet were scratched.
58. The damage to and lack of control of the plaintiff's right limbs were, in Dr. Lee's view, were due to lack of use over the years resulting in the limbs becoming wasted.
59. He is supported in that conclusion by the evidence of Dr. Cheung and Dr. Wu.
60. The views expressed by Dr. Lee and Dr. Hodgson concerning secondary problems and the way in which they are related to the plaintiff's environment are worth repeating in extenso.
61. They say that the plaintiff's problem now is not the original injury but the secondary problems which arise due to the injury. These secondary problems often have more effect on morbidity and mortality than does the head injury itself. His living conditions they describe as pathetic and in his compartment there is no toilet or bathroom and part of the windows are broken. He started to have a skin sore due to constantly being bed-ridden and loss of control of urination. It might give rise to a chest or urinary infection. All these secondary problems will definitely shorten this patient's life-span. Therefore, first a change of living condition is vitally important which should be done as soon as possible. The place should have a lavatory with the necessary modifications. It might take a space of 8 square metres. The main bedroom should be big enough to contain one special bed for the plaintiff and another bed for his wife. Medically speaking the plaintiff should be under 24 hour surveillance. Therefore, the plaintiff and his wife should stay in the same bedroom and they need about 20 square metres of space to allow the wheelchair to move about in the bedroom. The daughter should have her own bedroom because the plaintiff has lost the control of his urination and bowel movements and her bedroom should be 8 square metres. They need a dining area about 10 square metres and a kitchen about 6 square metres. Altogether they need a residence of 52 square metres net. All except the kitchen, the other doors including the main entrance should be widened to allow the wheelchair to pass through.
62. On 23rd May, 1986 at long last, the plaintiff's situation took a dramatic turn for the better.
63. He and his family moved to Flat C, 9/F.,Block 1114 Chi Fu Fa Yuen This as a two bedroomed flat of about 54 square metres net is set in a pleasant environment with sitting out areas and gardens.
64. He is attended 8 hours per day by a registered nurse. This is a man called Mr. Tsui. Mr. Tsui gets on well with the plaintiff. He is able to attend to all his nursing needs thus reducing considerably the dangers of secondary infection. He is able to bath and wash him and attend to his other toilet needs. He can observe the plaintiff's condition and detect any deterioration in it at an early stage.
65. He wheels the plaintiff around Chi Fu.
66. The plaintiff and his wife are no longer housebound.
67. The improvement in both of them was testified to by Dr. Lee who has visited them at Chi Fu.
68. The plaintiff has waited for eleven years and five months for this upturn in his fortunes. Because of the absence of this form of environment and care his condition worsened bringing on the incident of 2nd November 1983 and causing the wasting of his right limbs.
69. For this eleven years and five months his wife has cared for his every need, as far as she could, all by herself. She was doing her best but it was clearly becoming too much for her. The plaintiff's personal hygiene was very bad in Tsz flan Shan when Dr. Lee visited them there.
70. So then, as at today, that is the plaintiff's position. At last he has a quality of life which will in some way ameliorate his grievous physical condition.
71. I now turn to consider the heads of damages as claimed in the statement of claim as amended on the first day of the assessment, i. e. 23rd June 1986, and particularised in the notice attached hereto in pursuance of 0.18, Rule 12(2) R.S.C.
A. Pain suffering and loss of amenities
72. The physical condition of the plaintiff is clear from the medical reports quoted in extenso herein.
73. He is a partial tetraplegic. His left side is hemiplegic and his right side is wasted.
74. His brain is severely damaged leaving him with a mental disability.
75. He cannot perform any function for himself. He is incontinent in his urinary function. His capability to feed himself has been described as similar to a nine or ten month old child.
76. His vision is severely defective.
77. His speech is incomprehensible except to those who spend a long time in his company. Even then communication is limited to indicating his basic needs and desires.
78. Sexual intercourse between the plaintiff and his wife has not taken place since the accident.
79. I have no difficulty in placing him within the disaster category as described, by Cons, J. A. in Lee Tung-lam v. Leung Kam-ming [1980] HKLR 657 as being
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"..... where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children.
Awards are from $150,000 upwards. We should add that in (this category) additional awards can be expected to cover nursing or other attendant care."
I was referred to an assessment of my own in
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80. Lau Sun-kiu v. Leung Chan-fai and another (Action 2823 of 1983) made on 6th February 1986 where I awarded $330,000 under this head.
81. In that case I had made an adjustment for the fall in the value of money - see Chan Wai-tong v. Li Ping-sum [1985] HKLR 176 PC and allowed an increase thereon of 10% per annum.
82. Mr. Ozorio accepts that, whatever the starting point, these adjustments are an appropriate course to follow.
83. Mr. Mills-Owens urges bolder line. He referred me to a decision of Hunter, J. in Chim Kwan-tai v. Yip Shing-wo and others (Actions 6818 of 1981 and 7922 of 1982) delivered on the 15th April 1986.
84. In that judgment, at p.17 and following, Hunter, J. casts doubt on the wisdom of applying the adjustments I have described above. He also sheds doubt upon the inapplicability of the value of awards for damages under this head in the United Kingdom to assessments in Hong Kong.
85. Without intending any disrespect to that powerful judgment I regret I cannot follow the path along which it points - much as I might like to.
86. I am bound by the decision of the Court of Appeal in Lee Ting-lam (op tit) and will seek the appropriate standard of monetary compensation for physical injuries in the decisions of the Courts of Hong Kong and not elsewhere.
87. I have been referred to and have carefully considered the awards made in Chan Chung-fun v. Tam Lung-pau [1982] No.4865 - 5th Hay 1983, Mak Yim-tai v. Kwong Kwok-fai [1983] No. 1427 - 8th August 1983, and Law Hoi-chuen v. Grandeur Construction Company (1981 of No. 5628) - 9th August 1985 in which latter case Macdougall, J. implicitly suggest, at page 7 that the disaster category begins with an award in excess of $240,000.
88. On a consideration of these cases I am satisfied that my own most recent award in Lau Sun-kiu (op cit) was not inconsistent therewith.
89. In this case the plaintiff has additional disabilities of sight and speech. His brain is damaged and there is no function that he can perform for himself.
90. In the context of pain and suffering it is to be remembered that he has endured appalling standards of care and environment for over eleven years before they were ameliorated
91. Accordingly under this head I award the sum of $450,000 but in the light thereof I do not make any award for loss of expectation of life.
B. Pre-trial loss of earnings - the plaintiff
92. Mr. Ozorio for the defendant takes no issue with the increase in the average daily rates of pay of a carpenter as set out in page 4 of exhibit 14.
93. He also takes no exception to the starting point of the plaintiff's daily rate of pay at the time of the accident.
94. However, the calculation of monthly pay as set out in the statement of claim is based on a 26 day month. PWl stated in cross-examination that, being a construction worker, the plaintiff would not work on days when it was raining heavily. Accordingly Mr. Ozorio says the calculation ought to be made on something less and he submits a 22 day month as appropriate.
95. I accept that the figure must be less than 26 but not as low as 22 and I accordingly select 24.
96. I calculate pre-trial loss of earnings up to 1.7.1986.
97. Adding an extra month to the amount claimed in the statement of claim produces $450,574.80. To adjust this for a shorter working month I divide that by 26 and multiply the result by 24 and award $415,915.20
C. Loss of future earnings - the plaintiff
98. A multiplier of 8 was agreed by the parties.
99. The multiplicand of $4,984.20 in the statement of claim is requires adjustment in the same proportion as the pre-trial loss hence $4984.20 x 24/26= $4,600.80
For loss of future earnings therefore I award $4,600.80 12 x 8 = $441,676.80
D. Pre-trial loss of earnings - plaintiff's wife
100. It is established that PW1 has not in fact worked since the accident. In my view she could not have done so bearing in mind the physical condition of the plaintiff for whose care she was entirely responsible. The condition of the plaintiff also meant that he could not share in the responsiblities of bringing up their child, thus burdening her with sole responsibility for that also.
101. Mr. Ozorio takes no issue with the rate of pay claimed on behalf of PWl and the annual increases in respect thereof set out in Exhibit 14.
102. He maintains however that allowance should be made for three periods of six months during which PW1 stated she would not have worked is any event. These periods relate to the post-patal rests for the present child and two other children that she and the plaintiff planned.
103. Mr. Mills-Owens concedes that this adjustment is appropriate.
104. The present child was born on 23.4.1976.
105. I therefore deduct earnings for May - October 1976 = 6 months at $525.72 = $3,154.32
106. Assuming that the planned children had arrived at 2 years intervals earnings must be deducted for
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May - October 1978 = 6 months at |
39.60 = $3,837.60
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and
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May - October 1980 = 6 months at |
$1,480.00 = $8,880.00 |
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giving a total of
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$15,871.92 |
107. The total pre-trial loss of earnings claimed is $183,970.08. Deducting $15.871.92 therefrom I award $168,098.16.
E. Loss of future earnings - the plaintiff's wife
108. It has beep submitted that now that the plaintiff is to receive nursing care during the day his wife ought to be in a position to take up, at least, part time employment.
109. Dr. Lee's view was that someone will have to keep an eye on the plaintiff around the clock. He has recommended that PW1 sleep in the same room as the plaintiff for this purpose. If he wakes she can attend to him. If he needs water or other attention she can provide it.
110. Assuming an 8 hour nurse this leaves 16 hours, per day when the plaintiff is in PW1's sole care. As stated earlier, because of the plaintiff's condition, she also has the sole burden of bringing up their daughter.
111. Can she be expected to work as well? My answer to that is in the negative.
112. Applying then the multiplicand of 2,574.00 in the statement of claim to the multiplier of 8, I award
2,574 x 12 x 8 = $247,104.00
F. Other items of special damage
113. I now award damages in respect of the claim for which there was no serious dispute-
1. Medical Expenses
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(a) In patient fees QEH |
$516.00 |
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(b) In patient fees Buddhist |
$1,170.00 |
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(c) Out patient fees |
$170.00 |
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(d) Community nurse |
$864.00 |
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2. Nourishing food
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(a) in hospital at $25 per day |
$3,825.00
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3. Travelling Expenses
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(a) |
Plaintiff to out patient clinic $25 each time |
$975.00
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(b) |
PW1 to visit in hospital 1.80 each time |
270.00
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sub-total
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$7,790.00 |
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============ |
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114. Two more items remain in the statement of claim - they are
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Bonesetters fees |
$6.000.00
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and
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Nourishing food at home ($100 per week) |
$52,950.00
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115. These items are unsubstantiated by any documentary evidence and yet they remained unchallenged in the cross examination of PWl and were not the subject of any submission by Mr. Ozorio as regards their disallowance.
116. Certainly some expenditure must have been incurred on each item. PW1 says so and I have no doubt that she was a truthful witness as well as a dedicated wife.
117. It is clear that the plaintiff has had a number of falls which caused him injury. The most notable injury is the loss of most of his teeth. I am satisfied that an award for bonesetters fees is justified in principle. The amount claimed is not nominal but nevertheless I regard it as justified and award the amount claimed in full.
118. An award for nourishing food is not an unusual feature these days in an assessment of this nature. Where the amount claimed nominal it is not usual to put the plaintiff to strict proof thereof. Here, however, the amount claimed is not nominal.
119. With regard to the amount claimed it would not be unreasonable in my view to expect the plaintiff to produce some evidence of the nature of the nourishing food provided, the expense thereof and the justification therefor
see Yu Ki v. Chin Kit-lam [1981] HKLR 419 and Mui Ling-kwon v. Wong Yin-wah [1973] HKLR 465, per McMullin J at 476 ff.
120. This the plaintiff has not done and I am accordingly constrained to reduce the awards to nominal amounts.
121. Accordingly I award $10 per day for nourishing food for a 6 month period following the plaintiff's release from hospital after the accident in 1975.
i. e. $10 x 182 = $1,820.00
122. I award also $15 per day for nourishing food for a 6 month period following the plaintiff's release from hospital after his deterioration on 2nd November 1983
i. e. $15 x 18 = $2,737.00
added together = $4,557.00
The total I award under this head is therefore
$7,790.00
$6,000.00
$4,557.00 $18.347.00
123. I should make it clear at this stage that I do not regard nourishing food as a continuing future loss and do not intend to make an award therefor.
124. Before turning to the consideration of future loss the life expectancy of the plaintiff must be ascertained as this will be a factor in all the following equations.
125. The medical evidence is at variance upon it.
126. Much evidence has centred around the possible cause of the deterioration on 2nd November 1983. If the convulsions on that day were caused by thrombotic stroke then one might expect a shorter life expectation than if the plaintiff was, and is, a sufferer from epilepsy simpliciter.
127. One cannot know, at this distance in time, what caused the attack.
128. The infarction, or morbid condition of the brain tissue, was on the right of the brain. It was caused, more likely, by an embolus or shortage of blood to the brain than by excessive bleeding.
129. The plaintiff does have hypertension but it is under control by mild drugs.
130. The plaintiff had, up to the time of the attack, been relatively immobile - another feature that can lead to an embolus.
131. Dr. Wu thought that the reason for the sudden deterioration was more likely to be something different from the epilepsy with which the plaintiff had lived, and had apparently come to terms with, over the previous 8 years.
132. Dr. Cheung however thought that the attack was a part of the continuing process of brain damage and epilepsy.
133. Dr. Cheung said he was biased against the thesis of stroke as in his view the infarction, being on the right, was not in the correct situs to cause slurring of speech, defective vision and lack of coordination of the limbs on the right side of the body. For all that, he said, the damaged site was more likely to have been found on the left of the brain.
134. Dr. Wu fairly admits that Dr. Cheung has a point in this evidence.
135. Dr. Wu supports his view that the plaintiff more likely had a stroke by his observation of left spastic hemiplegia in the plaintiff. However the plaintiff has had left spastic hemiplegia since the date of the accident in 1975 during which the right side of his brain was damaged.
136. In his second report Dr. Wu puts forward a prognosis of a repeated stroke as a factor in the life expectancy of the plaintiff. He fairly admitted that the prognosis contained in his report was not correct and was not supported by the statistics upon which he relied.
137. After careful consideration of the evidence of both Dr. Wu and Dr. Cheung I accept Dr. Cheung's evidence that the bias is against a thrombotic stroke being the cause of the convulsions suffered by the plaintiff in 1983 or being a factor in his expectation of life.
138. Dr. Lee placed the plaintiff's life expectancy at 10 - 12 years.
139. Dr. Cheung placed it at 15 and possibly a further 5 years with good care and attention.
140. A realistic view of the plaintiff's expectation of life is 14 years and that is the figure I choose.
141. This figure must now be reduced, to take into account accelerated payment and other imponderable factors highlighted by the medical evidence, to arrive at an appropriate multiplier. I therefore reduce it accordingly and select a multiplier of 9.
Future Expenses
G. Medical Expenses
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(a)
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Hospital
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It is considered very likely that the plaintiff will have periods of hospitalisation during his life time.
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Some provision must be made for this. $20,000 per annum is claimed in the statement of claim.
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It is claimed that the plaintiff ought to be relocated near to a hospital. This has been done and he is located near to Queen Mary Hospital where treatment for him will be at Government rates.
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Secondly it is claimed that his nursing care will reduce the risk of secondary infection which will be detected earlier. So beneficial will that be, says Dr. Cheung, that early diagnosis may avert the necessity for hospitalisation.
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Taking account of chose factors I award $5,000 per annum which is a total of $5,000 x 9 = $45,000.00
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(b)
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General Practitioner
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I accept that the plaintiff will need to see a GP once a month for the rest of his life and accordingly award
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$150 x 12 x 9 = $16,200.00
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(c) |
Consultant
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I accept that the plaintiff will need to see a consultant four times per year at $300 per visit and accordingly award $300x 4 x9=$10,800.00
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(d) |
Physiotherapist
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I accept that physiotherapy will be highly beneficial to the plaintiff. However I believe that with nursing assistance the physiotherapy regime could be properly limited to 1st visit per week at $300 per visit and accordingly award $300 x 4 x 9 = $10,800.00
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(e) |
Travelling expenses
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The consultations referred to in (a), (b) and (c) above will result in travelling expenses and it is not disputed that they will, in total, be as in the statement of claim i. e. |
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$600 - GP
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$60 - Consultant
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$168 - Hospital visits by PW1
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and I accordingly award
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$328 x 9 = $7,452.00 |
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(i)
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Drugs - there is a modest charge for drugs even when obtained from Government hospitals. $48 per annum is claimed and I accept this. I award $48 x 9 = $432.00
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(ii)
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Sheets, - the plaintiff is incontinent and bed linen is soiled. To avoid the risk of infection disposable bed linen is needed.
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Allowing for a daily change of both sheets at $5.90 per sheet that is $5.90 x 2x 365 x 9=$38,763.00
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(iii)
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Urine bags are another expense connected with the plaintiff's incontinence. $1,200 per annum is claimed and I allow it.
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$1,200.00 x.9= $10,800.00
The total then under this is
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$45,000.00 |
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$16,200.00 |
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$10,800.00 |
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$10,800.00 |
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$ 7,452.00 |
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$ 432.00 |
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$38,763.00 |
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$10,800.00 |
|
|
________ |
|
|
$140,247.00 |
|
|
============== |
|
H. Special equipment and aids
|
(i) |
It is clear that the plaintiff will require a wheelchair and also a spare one to use while the other is being maintained. The principal wheelchair will require replacement every 3-4 years. It is going to get a lot of use. I accept that the plaintiff ill require 3 wheelchairs during his lifetime.
|
|
|
According to Ex. 4 a suitable wheelchair for principal use will cost $5,530.00. I accordingly
|
|
award |
$5,530.00 x 3 |
= $16,590.00 |
|
|
spare wheelchair |
= $ 2,750.00 |
|
|
annual maintenance 500 x 9 |
= $ 4,500.00 |
|
|
|
________ |
|
|
|
$23,840.00 |
|
|
(ii) |
It is accepted that the plaintiff will require a hospital type bed to minimise danger from falls etc. when he is resting. According to Ex.2 the cost of such a bed is $5,310. I consider that if it is replaced once there will not be a need to consider maintenance or repair costs. I accordingly award $5,310 x 2=$10,620.00
|
|
(iii) |
To facilitate the plaintiff's toilet activities a commode is necessary. According to Ex. 3 the cost of that is $2,3000. Apparently they are not building these splendid pieces of furniture as well as the Victorians did and it will need to be replaced. I am satisfied that one replacement will be adequate and accordingly award $2,500 x 2 = $5,000.00
|
|
|
The total then under this head is $23,840 + $10,620 + $5,000=$39,460.00
|
|
I.
|
Nursing care - The plaintiff is at present being nursed by Mr. Tsui, a Hong Kong registered nurse supplied by International Private Nursing Service Limited. He attends 8 hours per day at cost of $300.
|
|
Dr. Lee is adamant that this is necessary for the plaintiff. The nurse must be there 8 hours per day otherwise the burden is excessive upon the plaintiff's wife. The nurse must be a registered nurse says Dr. Lee because only a person with that training would recognise the onset of secondary infection and be able to provide the necessary prophylactic treatment. Mr. Tsui has already proved his worth in this regard by detecting the onset of bronchitis and causing the plaintiff to be speedily treated. O.E.D. says Dr. Lee.
|
|
Dr. Wu, and to a lesser extent Dr. Cheung, feels that the service so provided is excessive. However both were emphatic that they would supply such a service for a relative of theirs were that relative in such a state as the plaintiff.
|
|
Mr. Ozorio urges that the services that should be made available to the plaintiff under this head (and under the head that follows) ought to be related to the plaintiff's station in life. He cites in support thereof the case of Chik Shiu Sheung-man v. Leung Wai-hung & anor. (Action 3170 of 1979) where Mr. Commissioner Liu, Q.C. (as he then was) did make an award of special damages of $329,742 as he considered them to be recoverable having regard to the plaintiff's station in life. Alas, we are not told upon what that expenditure was incurred. It is significant however that for future care only a domestic helper cum companion was considered to be all that was required and an award was made for that. In other words irrespective of the plaintiff's station in life only what was required was supplied.
|
|
I propose to adopt the same approach and supply that which is required. Dr. Lee says categorically that a registered nurse is required for 8 hours per day and I accept it.
|
|
This of course will amount to a substantial award and it is the amount of money involved, I believe, that has caused Dr. Wu and Dr. Cheung to water down their views.
|
|
Of course it is substantial and the words of Cons, J. A. in Lee Ting-lam (op cit) are well remembered at this stage.
|
|
It is also a regular feature in Current awards that damages under this head Can well exceed those awarded for pain, suffering and loss of amenities see Brightman v. Johnson [1986] 1 C. L. 106 and Housecroft v. Burnett [1985] 9 C. L.69.
|
|
Accordingly, I award under this head $300 x 365 x 9 = $985,500
|
|
J.
|
Accommodation - It is unanimously accepted that the plaintiff's accommodation at Tsz Wan Shan was wholly unsuitable. Dr. Lee's recommendations as to suitable accommodation is set out earlier herein in extenso.
|
|
The plaintiff has already fulfilled that recommendation, give or take a square metre or two. With management fees and rates the flat at Chi Fu Costs $5,515 per month. It is furnished but the rent element in respect thereof is only $140 per month.
|
|
It is a bargain according to Mr. Churchouse of Jones, Land Wootton, who was PW 4.
|
|
PW 4 was commissioned by the Director of Legal Aid on behalf of the plaintiff to find a property corresponding as far as possible to Dr. Lee's description.
|
|
His evidence and his report disclose that he canvassed a number of alternatives and, in exercise of his judgment, selected Chi Fu.
|
|
It is important to remember that the plaintiff is living in Chi Fu as a result of a recommendation of a doctor put into effect by a reputable independent property expert.
|
|
It is also important to remember that there is no evidence to contradict either Dr. Lee or Mr. Churchouse.
|
|
I accept that public housing is unsuitable and I accept that Dr. Lee's recommendations are valid throughout. I accept Mr. Churchouse's evidence that the Chi Fu property, and no other that he saw fulfilled those recommendations.
|
|
Mr. Ozorio takes issue with one of Dr. Lee's recommendations in particular that of a separate bedroom for the daughter. Without that, he says, the accommodation would not need to be so large.
|
|
The plaintiff is helpless and incontinent. He has to have the most elementary toilet functions performed for him or at least performed with the help of others. This situation prevails day and night. The daughter patently cannot share the plaintiff's room. If she sleeps in a partitioned off part of the living area, as seems to be suggested, that would detract from the size of the living area recommended by Dr. Lee and be equally unacceptable. Hence she requires separate and additional accommodation.
|
|
I accept the proposition in Kemp and Kemp at p. 1121/13 to the effect that the plaintiff is entitled to recover the increased rental expenditure incurred by moving from one rented dwelling to another but not the capital cost of new accommodation.
|
|
The fact that an award for the increased rental may approximate to the capital cost of the flat seems to me neither here not there. That situation would pertain if I awarded a lower rent for a less valuable property or a higher rent for a more valuable property.
|
|
The plaintiff is entitled to recover the increased rental and that is what I will award.
|
|
What then is the increased rental?
|
|
As at today I have regarded the plaintiff and his wife as having a joint notional income of $7,174 per month. It is not unreasonable in my view to conclude that they would expend 10% of that on rent. Rounding up, I conclude that their notional existing rental is $720 per month.
|
|
The Chi Fu rent and charges are $5,515 - $140 = $5,375.00
|
|
The multiplicand for rent is therefore $5,375 - $720 = $4,655.00.
|
|
I therefore award under this head $4,655 x 12 x 9 = $502,740.00.
|
| K. |
Costs The plaintiff's action against Kai Tai was struck out because of inordinate and inexcusable delay and the plaintiff has been rendered liable to Kai Tai in respect of the costs of that action.
|
|
I hereby order that the defendant shall indemnify the plaintiff against any claim made against him in respect of those costs.
|
|
One further matter remains to be dealt with before I summarise the whole award.
|
|
Mr. Ozorio submitted that whatever award is made, the award must be reduced to take account of the likelihood that the plaintiff may not have recovered in full against Kai Tai.
|
|
In my view, if the defendant wishes to allege that the plaintiff is not entitled to recover in full against him because he, the plaintiff, would not have recovered in full against Kai Tai, he must plead that. If issue is taken with that plea then that issue will be tried and in the trial of that issue the burden will be upon the defendant to establish that which he claims to be the case.
|
|
If any such issue ever existed it was extinguished on the 30th April 1985 when interlocutory judgment was entered against the plaintiff because no defence had been filed.
|
|
The matter is succinctly resolved by Diplock L. J. in Allen v. Sir Alfred NcAlpine 6 Sons Ltd. [1968] 2 QB 229 at 256G where he says "It is true that if the action for professional negligence were fought, the court which tried it would have to assess what (the plaintiff's chances of recovering damages against the defendant in the dismissed action) were." and later at 257A.
|
|
"...the principle of Armory v. Delamirie (1722)1 Stra. 505 would apply and would impose upon the solicitor the onus of satisfying the court that the plaintiff's claim in the dismissed action would not have succeeded had it been prosecuted with diligence. This would be a heavy onus to sustain after so great a lapse of time."
|
|
Applying those dicta to the present case produces the result that I do not propose to reduce my award to the plaintiff on the basis that his action against Kai Tai may have failed in whole or in part.
|
SUMMARY
142. The award is summarised as follows (ignoring cents)
| A. |
Pain suffering and loss of amenities |
$450,000 |
|
| B. |
Pre-trial loss of earnings - plaintiff |
$415,915 |
|
| C. |
Loss of future earnings - plaintiff |
$441,676 |
|
| D. |
Pre-trial loss of earnings - wife |
$168,098 |
|
| E. |
Loss of future earnings - wife |
$247,104 |
|
| F. |
Other items of special damage |
$ 18,347 |
|
| G. |
Medical expenses |
$140,247 |
|
| H. |
Special equipment and aids |
$ 39,460 |
|
| I. |
Nursing care |
$985,500 |
|
| J. |
Accommodation |
$502,740 |
|
|
|
_______ |
|
|
|
$3,409,087 |
|
Credit must be given for
| a) |
Employees compensation |
$128,280 |
|
|
| b) |
Payment in by defendants |
$200.000 |
$323,280 |
|
|
|
|
|
|
|
|
|
$3,080,087 |
|
|
|
|
========= |
|
Interest:
143. There will be interest on the general damages at A at 2% from the date of the writ herein i.e. 19th February 1986 until the date hereof.
144. There will be interest on the special damages at B, D and F at the rate of 4% from the date of the accident i. e. 28th December 1975 until the date hereof.
145. The whole amount awarded, including interest, shall be paid into court within 28 days hereof and shall be invested by the Registrar, at his discretion, on behalf of the plaintiff, subject to the usual terms and conditions as to payment out.
146. The defendant shall pay the plaintiff's costs which shall be taxed if not agreed and the plaintiff's own costs shall be taxed in accordance with the Legal Aid Regulations.
147. There will be a certificate for 2 Counsel.
|
(B. Suttill) |
|
Acting Senior Master |
Representation:
| Appearances : |
Mr. Mills-Owens Q.C. and Mr. Sujanani instructed by the Director of Legal Aid acting on behalf of the plaintiff. |
|
Mr. M. Ozorio instructed by Messrs. P.C. Woo & Co. for the defendant. |
|