NGAN MAN YUK v. LAU KWAN HIM AND ANOTHER

HCPI 1263/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1263 OF 2003

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ASSESSMENT OF DAMAGES

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Background

1. In her Writ of Summons filed herein dated 19 November 2003, the Plaintiff claimed against the Defendants for damages for personal injury, loss and damages arising out of the negligent driving of a public light bus ES8809 (“the PLB”) which was driven by the 1st Defendant and owned by the 2nd Defendant.

2. Interlocutory judgment on liability was obtained on 24 February 2004 with damages to be assessed.  Pursuant to the judgment, the Plaintiff’s contributory negligence was assessed at 10%.

The Plaintiff’s Case

3. On 27 June 2001, the 1st Defendant was driving the PLB along the northbound carriage of Tsui Ping Road heading for Sau Mau Ping.  While the Plaintiff was crossing Tsui Ping Road from east to west, she was knocked down by the PLB.

4. The Plaintiff was born on 29 August 1957 and was about 43 years old at the time of injury.  She is over 47 years old at the time of this hearing.  She is married with a daughter and a son now aged 16 and 11 respectively.

5. The Plaintiff was admitted to United Christian Hospital with impaired consciousness.  Computer tomography of brain shown left acute subdural haematoma and left fronto-temporal contusion.  Emergency right burr hole for ventricular drainage was done on 28 June 2001.  Another emergency left craniotomy with clot evacuation was also done on the same day.  The Plaintiff was then complicated by post-operative right frontal cerebral abscess.  Emergency right mini-craniectomy was done for abscess drainage and Hickman line insertion on 14 July 2001.  Another emergency right craniotomy for abscess drainage was repeated on 21 July 2001.  Subsequently the Plaintiff was transferred to Haven of Hope Hospital on 19 September 2001 for rehabilitation and stayed there until 13 October 2001.  She received out-patient occupational therapy treatment once a week at UCH for around one year thereafter.  A cranioplasty was carried out on the Plaintiff in February 2002.  The Plaintiff has been suffering from subsequent epileptic attacks when an occasions.  She was re-admitted to the Queen Elizabeth Hospital for treatment.

6. In her Amended Revised Statement of Damages filed on 18 November 2004, the Plaintiff complained that she was suffering from

“As a result of the injuries sustained in the traffic accident as pleaded in the Statement of Claim, the Plaintiff now suffers from:
(a)	A severe loss of cognitive ability reflecting brain dysfunctions which are long lasting;
(b)	Impaired cognitive functions, perception, memory, thinking, language and social functioning;
(c)	Impaired speech with paraphasia and neologisms in her speech plus a mild to moderate degree of dysphasia;
(d)	Retrograde amnesia;
(e)	Occasional frontal headaches;
(f)	Inability of independent living nor caring for her husband and children;
(g)	Incapability of managing and administering her property and affairs and is classified as of “unsound mind”;
(h)	Lack of interest in sex;
(i)	Lack of strength in right arm;
(j)	Presence of unsightly scarring.
The Plaintiff’s overall intelligence falls within the Mental Defective range (IQ below 70), a decrease of at least 35 points as a result of the accident.  Her impairment of the whole person has been assessed at 51% (exclusive of physical and other impairments).  Her loss of earning capacity is 100%.”

7. Mr. Ho Chung Keung, the husband of the Plaintiff, was the only witness of this hearing.

8. A number of medical reports are placed before the Court.  They are:

(1)	Medical report of Professor David Y.F. Ho dated 21 August 2002;
(2)	Supplementary psychological report of Professor David Y.F. Ho dated 1 May 2004;
(3)	Medical report of Dr. Calais Chan dated 15 April 2004;
(4)	Supplementary psychological report of Dr. Calais Chan dated 26 July 2004;
(5)	Medical report of Dr. Edmund Woo dated 24 March 2003;
(6)	Evaluation report of Rehabilitation Consultants (Ms. Shelly Chow) dated 11 July 2003;
(7)	Discharge Summary of Haven of Hope Hospital;
(8)	Medical report of Dr. Chan Yuen Sze of the Haven of Hope Hospital.

Apart from above, there is a bundle of medical records concerning the psychiatric treatment of the Plaintiff.

9. There is no dispute that the Plaintiff attained Form 1 level of education in Hong Kong.  The reason given for leaving school was psychiatric disturbances.  After leaving school, the Plaintiff worked in her brother’s shoe factory on an irregular basis until her marriage.  After marriage, she worked as a paper box folding worker for about half a year and thereafter at a fast food restaurant for a few months.  She did not work any further after she gave birth to her first and child.

10. The Plaintiff has had a history of psychiatric hospitalization for 10 times, dating back to her teenage years.  The most recent one (before the accident) was in 2000 when she was hospitalized at Kwai Chung Hospital for 1.5 months.  The first hospitalization was back in early 1975 when the Plaintiff was hospitalized for 1 month.  For the other admissions, the Plaintiff had to stayed for at least 1 month save and except that in 1989 when she stayed for 2 weeks only at Castle Peak Hospital.

11. Although the Plaintiff had such a long psychiatric history, she had never behaved in a way that caused danger to herself or to others.  There is no history of suicidal attempt, violent acting out, drug or alcohol abuse.

12. In his report dated 20 August 2002, Professor Ho opined that the Plaintiff was hospitalized for nearly 3 months at UCH and her consciousness during the entire duration was apparently impaired although there was an improvement from GCS 8/15 to 14/15.  Such a prolonged period of impaired consciousness is predictive of sever long-term cognitive impairment.

13. Professor Ho was of the view that the Plaintiff’s self-care abilities are intact.  She can go out of the house by herself around the neighbourhood, and buy things from the supermarket.  But she has to be accompanied by family members for going to places beyond her neighbour, as she is liable to getting lost.  She cannot take public transportation by herself.  Professor Ho observed that psychotic symptoms were absent, as were symptoms of Posttraumatic Stress Disorder.  There was little or no indication of depression.

14. Professor Ho confirmed that the Plaintiff’s cognitive functions, perception, memory, thinking and language have been severely impaired.  A battery of psychological tests was administered to assess the Plaintiff’s cognitive functions.  Professor Ho found that there has been a decrease of at least 35 IQ points as a result of her accident (the pre-accident IQ was 90 to 109).

15. Professor Ho further opined that the Plaintiff is not and will not be capable of independent living.  Although she can care for herself in terms of activities of daily living, she required supervision with respect of managing the more demanding aspects of living (e.g. her property and affairs).  He assessed the Plaintiff suffering from impairment of the whole person at 51%; loss of earning capacity at 100%.

16. Professor Ho advised that the Plaintiff should undergo 25 sessions of cognitive training.  The cost per session, on a private basis, is $2,000 to $2,500.

17. Dr. Calais Chan in his first report found that there was significant impairment in the Plaintiff’s global mental functioning.  The Plaintiff obtained a Full-Scale IQ of 67.  Dr. Chan, relying on Barona index, assessed the pre-morbid intelligence scale of the Plaintiff to be 78.

18. Dr. Chan concluded that the Plaintiff has suffered from significant cognitive impairments as a result of her severe brain injury.  He was also of the view that the overall clinical profile was consistent to the diagnosis of organic dementia due to head injury.  Dr. Chan observed that further improvement in her cognitive function by way of rehabilitation is considered to be limited.  He assessed the Plaintiff’s overall degree of permanent disability owing to mental and behavioural disorder at 45 to 55% and the permanent disability caused by the Plaintiff’s pre-existing psychiatric illness at 15 to 25%.

19. Dr. Chan also opined that the Plaintiff cannot perform the full range of household duties that she used to perform.  Further, the Plaintiff could not be able to take up any formal employment beyond the rehabilitative settings such as sheltered workshops and day activity centres.

20. Dr. Edmund Woo in his report dated 24 March 2003, found that the Plaintiff has residual dysphasia, cognitive dysfunction and post-traumatic epilepsy.  He was of the view that dysphasia and post-traumatic epilepsy yielded a combined total of 28% impairment of the whole person.

21. In late 2001 or early 2002, Mr. Ho witnessed, for the first time, an epileptic seizure on the Plaintiff.  There were attacks at a frequency of once every 2 to 3 months.  The Plaintiff was required to attend regular follow up evaluations at the neurosurgical clinic of the UCH.

22. Mr. Ho said that there were discussions with the Plaintiff concerning her resuming work when their younger son attained 14 or 15 years of age.  He was of the view that the pre-accident psychiatric problem would not prevent the Plaintiff from getting a job e.g. as a dishwasher.

23. Mr. Ho started to work as a technician of Jone Lang LaSalle in August 1998.  He resigned on his own accord in August 2000 because he exhibited anxiety symptoms like palpitations, restlessness and tremor.  At that time, he was earning a monthly salary of $11,500.  He was referred to neurologists at Queen Elizabeth Hospital for treatment.  The doctors opined that Mr. Ho suffered from mental stress.  Mr. Ho’s situation improved a lot after taken medication.  He estimated that he was 70% to 80% recovered. It was his plan to resume working when he became even better.  However, before that, the accident happened.   Since Mr. Ho worried about the Plaintiff, his situation became worse.  He believed that but for the accident, he had already resumed working.

24. After the accident, Mr. Ho stayed at home to take care of the Plaintiff and the 2 children.  Mr. Ho was of the view that even if he hired domestic helper, he still need to stay at home.  The reason was that the domestic helper would only handle domestic chores but nothing else.  Mr. Ho had to take personal care of the Plaintiff and to supervise the children.

Pain, Suffering and Loss of Amenities

25. The Plaintiff claims for $1 million while the Defendant contends that $800,000 is reasonable.  There is no dispute that the Plaintiff has a number of cognitive deficits in terms of memory and executive functioning.  When dealing with this head of claim, I have considered the medical reports by the doctors.  In my judgment, the Plaintiff’s self-care abilities are intact.  She can go out by herself around the neighbour.

26. As to IQ points, Professor Ho found that there was a decrease at 35 IQ points as he stated that pre-accident IQ was 90 to 109.  However, he did not state his basis for the pre-accident assessment.  In the light of the warning given by Dr. Woo in respect of the unreliability of any assessment of the memory and other cognitive abilities of the Plaintiff due to the deficit in communication suffered by the Plaintiff, I do not accept Professor Ho’s assessment as aforesaid.  On the other hand, Dr. Chan has clearly set out the basis of his assessment.  On this issue, I accept the view of Dr. Chan.

27. I have considered the authorities referred to me by Mr. Ramanathan, Counsel for the Defendant including Lau Ka Po v Man Cheuk Ming HCPI 584/1996, Hui Yiu Wing v The Regional Council HCPI 31/1998, Tsoi Yau Ya v Chan Kwok Hing HCPI 1388/1999, Siu Leung Sing v Wong Fook Wing HCPI 1096/1999 and particularly Lau Chung Nam v Au Wai Man [2004] 1 HKLRD 57.

28. These authorities are good yardsticks.  Nevertheless, the award made under this head must be made in the light of the background of this case.  I am of the view this case falls under “substantial injury” category and the reasonable amount to award is $800,000.

The Plaintiff’s loss of earnings

29. It was the Plaintiff’s case that she intended to resume her job as a cleaner or a dishwasher after the younger son has attained 16 year old.  That will be in 2009 and 4 to 5 years later from the date of hearing and the Plaintiff would be 52 years old.

30. The Defendant opposed to this head of claim.  In my judgment, the Plaintiff should not be entitled to anything under this head. By reason of her psychiatric problem, the Plaintiff did not work on a “regular” basis before marriage.  Prior to that, the Plaintiff just helped out her brother or put it in another way, her job was a compassionate work provided by the family members of the Plaintiff. Since after marriage, the Plaintiff had been working as a housewife and it was Mr. Ho’s evidence that his income was sufficient to maintain his family including the two children.  Bearing all these in mind, it is difficult to understand why the couple would, as stated by Mr. Ho, have discussed, on divers occasions, about the possibility of the Plaintiff taking on employment when the younger son has grown up.  The situation of the Plaintiff was not stable throughout the years and had to be hospitalized from time to time which lasted for at least for 1 month (except that in 1989 which lasted for 14 days only).  Their primary concern should be the mental health of the Plaintiff more than her rejoining the working force.  There was in fact no imminent need for them to consider this issue at all.

31. For the reasons aforesaid, I rejected the Plaintiff’s contention that it was the Plaintiff’s intention to resume work as suggested.  I found that, before the accident, the Plaintiff had no plan to rejoin the working force.  In the light of my findings, the Plaintiff has failed to prove her entitlement under this head.

Loss of Earning Capacity

32. For the purpose of this claim, I have reconsidered the Plaintiff’s mental illness.  No one can tell how much the Plaintiff can recover from her psychiatric problem but for the accident.  It is uncertain whether she can resume work.  For these reasons, I found that the Plaintiff has failed to prove any damages suffered under this head and I made no award accordingly.

Loss of Pre-trial earnings of Mr. Ho on Value of Service

33. At the hearing, Mr. Kwok, counsel for the Plaintiff, indicated that the Plaintiff will only pursue the claim for value of service at $8,000/month.

34. The main dispute here is the quantum.  The Defendants argued that there was no evidence to support a multiplicand of $8,000.  They only accepted a figure of $4,500/month.  One side issue here is whether a part-time helper or a full time helper is required.

35. The Plaintiff relied on the Personal Injury Tables Hong Kong (updated January 2003) and submitted that the daily rate for a care assistance was at $240 (6 hours), $300 (8 hours), $380 (10 hours) and $450 (12 hours) respectively.  In the light of this rate, the Plaintiff argued that the estimation of $8,000 for a local full-time helper who can speak Chinese is not unreasonable at all.

36. While the Plaintiff can take care of herself generally, she is unable to take care of the children and unable to do some of the household chores including cooking.  These duties are now shouldered by Mr. Ho.  The Plaintiff is thus entitled to have someone to take care of the family for her and also to supervise her.  There are lots of things to do in a family and it is not right to say that all of them can be done within a certain number of hours.  In my judgment, only a full time helper can accomplish the task.

37. As to quantum, I accept the submission of the Defence that there is no evidence to show that $8,000 is the reasonable rate for a local domestic helper as suggested by the Plaintiff.  There is also no evidence that there will be communication problem between the family and a foreign domestic helper.

38. It should be noted that some foreign helpers have worked in Hong Kong for a long time and they can speak punti very well.  The monthly expenses for such a helper is HK$3,670 (salary) + $3,480/12 (processing charges + air ticket etc as provided by Ms. Shelley Chow) + $900 (meals) + = $3,670 + $290 + $900  = $4,860/month.  I noted that the Plaintiff and her family members are residing at a small unit of a public housing estate. However, there is no evidence before me as to how this factor would affect their application to hire a foreign helper. The Court must not speculate on it and make award, on the assumption that the application would be rejected,  for hiring a local living out helper. In any event, there is no evidence about the salary for such a full time local living out helper.

39. In the absence of evidence, I am unable to award more than $4,860 per month.  I award $4,860 x 41 months = $199,260 to the Plaintiff under this head.

Mr. Ho’s loss of post-trial earning and cost of a maid

40. The Plaintiff claimed for both Mr. Ho’s loss of earning and also the cost of a maid.  It was submitted by the Plaintiff that prior to the accident, the Plaintiff had to look after the home and taking care of the children.  By reason of the accident, Mr. Ho had to do all these and also to take care of the Plaintiff.  It was argued that Mr. Ho has to monitor and supervise the Plaintiff very closely.  He has to pacify her and to stay with her all the time.  Further, he also has to take care of the children.  Therefore, he cannot spare any time to do the household works and thus a full time domestic helper is necessary.

41. The Defendant opposed to these claims.  First of all, it was submitted that there was simply no evidence to show when the Plaintiff could recover from his illness and return to work.  Mr. Ramanathan drew the Court’s attention to the Medical Assessment Form dated 26 July 2004.  It was stated that the duration of disability, i.e. neurosis, was likely to last for over 1 year and up to 2 years therefrom.

42. It should be noted that while he was giving evidence, Mr. Ho said that because he worried a lot about the Plaintiff, it prevented him from recovering fully.  This version was however not consistent with the comments made by Ms. Shelley Chow who stated at page 15 of her report:

“Mr. Ho reported that he cannot work due to his own anxiety which was not related to his wife.  He feels he is not mentally stable enough to work.  His problems started in July 2000 and he reported that the psychiatrist has not yet figured out what his problem is.”

43. I accepted the submission of Mr. Ramanathan.  There was clearly no evidence from the Plaintiff’s side to support the contention that Mr. Ho could return to active employment.  There was however the comments made by Ms. Shelley Chan that Mr. Ho’s problem had nothing to do with the Plaintiff.  The Medical Assessment as mentioned above indicated that Mr. Ho’s problem would last for 1 to 2 years.  Further, I am of the view that Mr. Ho is too protective over the Plaintiff.  None of the experts in this case shared the view of Mr. Ho concerning the Plaintiff.  The Plaintiff only needs some supervision to keep her following a regular daily routine and when outdoors.  Apart from the assertion of Mr. Ho, there was no evidence from the doctors or Ms. Chow that Mr. Ho has to stay by the side of the Plaintiff in such a way so as to prevent Mr. Ho from returning to work even if he could.  I have considered the need to take care of the children.  Nevertheless, they go to school in the day time and return home at around 3 pm to 4 pm.  Taking up a full time job would not in any way prejudice the supervision and caring of the children.  In the light of all these, the Plaintiff is not entitled to anything for Mr. Ho’s loss of post-trial earnings.

44. Given the conditions of Mr. Ho, I doubt very much whether he can take care of the family and the Plaintiff satisfactorily.  In my judgment, a domestic helper is necessary.  I have already ruled that a full time helper is required for the pre-trial period.  I can see no reason why a full time helper is not necessary for the post-trial period.  The question is what multiplier I should adopt.  The Plaintiff suggested 16 while the Defendants said 12 is reasonable.

45. In my judgment, 14 is the reasonable multiplier in this case.  This is the multiplier for the service of the domestic helper.  The children are growing up and the need to take care of them will drop.

46. The award under this head is therefore $4,860 x 12 x 14 = $816,480.

Future Medical Expenses

47. The main dispute here is whether the Plaintiff should be treated on a private basis.  Only Professor Ho suggested that the Plaintiff should be provided with medical treatment under a private doctor regime.  All other experts held the contrary view.  In fact, although Ms. Chow was of the view that the Plaintiff would benefit from attending a group occupational therapy programme (page 18 of her report), she stated that the private sector did not provide any programme of such level as provided by the Hospital Authority.  In my judgment, the Plaintiff has failed to show any reason why the Plaintiff should switch from the public scheme to private scheme.  Of course, a patient will be better served if being treated on private basis.  But that alone does not justify the claim.  There is nothing to demonstrate that treatment under the private scheme is required. In my judgment, the Plaintiff should be treated under the public regime.

(a)  Cognitive Training

48. I am of the view that it is proper to provide the Plaintiff with some form of treatment.  I award $1,500 ($60 x 25) under this head.

(b)  Neurological Follow-up

49. It is clearly necessary.  I award $3,360 ($60 x 4 x 14) under this head.

(c)  Occupational Therapy

50. The parties agreed that $7,240 should be awarded.

(d)  Family Counselling

51. The Defendants accepted that 30 sessions are necessary.  The award under this head is $1,800 ($60 x 30).

(e)  Psychiatric Follow-up

52. I accepted that the Plaintiff might need it as suggested by Professor Ho.  I award $1,500 ($60 x 25).

(f)  Future Travelling Expenses

53. The Defendants accepted $2,000 per year is reasonable.  I thus award $28,000 ($2,000 x 14) under this head.

(g)  Case Manager

54. There is no evidence, apart from Professor Ho, that the Plaintiff needs a case manager.  There is nothing to suggest that the services provided by the public authority call for co-ordination.  I reject the claim under this head.

(h)  Future Aids and Equipment

55. The Defendants accepted $500 per year.  I thus award $500 x 14 = $7,000 under this head.

(i)  Second Computer

56. I accepted what Ms. Chow had suggested.  A second computer may be useful for providing cognitive training to the Plaintiff.  I award $4,000 x 14 / 3 =$18,670.

57. Special damages was agreed at $13,724 and I award the same to the Plaintiff.

58. The total damages awarded is $1,708,680 and that has to be reduced by 10% for contributory negligence.

(1)	PSLA			$800,000
(2)	Loss of Pre-trial earnings of Mr. Ho			$199,260
(3)	Cost of a domestic helper			$816,480
(4)	Future Medical Expenses
		(a)	Cognitive Training	$1,500
		(b)	Neurological follow up	$3,360
		(c)	Occupational Therapy	$7,240
		(d)	Family Counselling	$1,800
		(e)	Psychiatric follow up	$1,500
		(f)	Future traveling expenses	$28,000
		(g)	Future Aids and equipment	$7,000
		(h)	Second computer	$18,670
(5)	Special damages			$13,724
				$1,898,534
Less 10%				($189,854)
			Net Award	$1,708,680
				========

59. Interest at the conventional rate of 2% per annum will be awarded for general damages for pain, suffering and loss of amenities from the date of the writ and interest for all pre-trial losses at half the judgment rate from the date of the accident.

60. I further make an order nisi that the costs of this assessment be paid by the Defendants to the Plaintiff to be taxed if not agreed.  Certificate to Counsel. The Plaintiff’s own costs be taxed in accordance to the Legal Aid Regulations. This order will become absolute 14 days after the handing down of this judgment unless there is application to the otherwise within such period.