TA XUONG v. THE INCORPORATED OWNERS OF SUN HING BUILDING

1995 No. P. I. 496

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES LIST

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J U D G M E N T

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Liability

1. The Sun Hing Building is on the Nathan Road, Mongkok, at the junction with Soy Street. Portland Street runs to its rear, parallel with Nathan Road. It also has a service lane off Portland Street.

2. Built in the early 1960's, it is a twenty-six story concrete block of commercial enterprises up to and including the 10th floor and mainly residential units from the 11th floor to the top. At least that was how it was originally intended to be.

3. By 1997 its condition showed all the signs of poor management: dilapidated decoration, illegal and haphazard extensions and installations, and a poor state of repair of essential services. Having had the opportunity of seeing parts of the interior and exterior of the building, I find descriptions afforded in Mr. Ian Cullen's report are if anything, an understatement. The material part of the 3rd floor is squalid and derelict: the external wall and the scavenger lane are cluttered with old bamboo scaffolding, tarpaulin sheets, rusting installations, and all types of obstacles. It is difficult to believe that there has been any attempt at essential management. It is a hazardous area. It reeks of neglect. A comparison with photographs taken in 1991 shows a significant deterioration but, as far as one can tell from such photographs, the state of affairs appeared uncontrolled and unpleasant even then in 1991.

4. The management itself is in the hands of the Management Committee of the Incorporated Owners of the Sun Hing Building. This covers the operation, servicing, maintenance and repair of the premises and building. It had "full and unrestricted authority to do all such acts and things necessary (for such management).... including power to enter into contracts and engage.... contractors, workmen etc".

5. The Defendants have erroneously relied upon Clause 3(a) of the Deed of Mutual Covenant which vested in Sun Hing Realty Ltd., its successors or assigns "the exclusive right to use, occupy and enjoy the exterior walls and canopies of the said building.... provided the said company, its successors or assigns shall at the same time be the owner of one or more undivided share or shares in the said premises and building." The second column of the 4th schedule of the Deed sets out the portions which are excluded from that exclusive right. Those portions relate to the theatre premises of the building that are delineated on certain plans attached, and such portion of the exterior part of the building as were shown on plans no. 6A and no. 6B annexed to the Deed in the ownership of South China Amusement Co. Ltd.

6. This clearly does not include the exterior wall facing onto the scavenging lane. That wall was covered by the description in that 4th Schedule "and all the other portions of the exterior parts of the said building" which remained vested in Sun Hing Realty Ltd.

7. By Clause 11, Sun Hing Realty Ltd. or its nominee, was the First Manager "of the said premises and of the building and shall have the right to the management of the said premises which shall include the operation, servicing, maintenance and repair of the said premises and the said building."

8. Sun Hing Realty Ltd. was formally dissolved or wound up on the 18th May 1971. From that time it clearly had no interest in the building. The management committee had taken over its role and the right of use occupation and enjoyment of the exterior walls and canopies were vested in the Incorporated Owners. Clause 14 provided that upon Sun Hing Realty Ltd. "relinquishing the management of the said premises and building, there shall be a Management Committee to be elected by the owners of the said premises and building.... the Management Committee shall have the management of the said premises and building which shall include the operation, servicing, maintenance and repair of the said premises and building."

9. I have already dealt with Clause 16 sub-clause (2)(b) of which provides that "all acts and decisions of the Management Committee (in respect of such matters as aforesaid) shall be binding in all respects on all the owners for the time being of the said premises and building."

10. It is clear therefore that for at least two decades Sun Hing Realty Ltd. had no interest in or responsibility for any part of the premises including the external walls because it did not exist and the advice that the Management Committee had received from their surveyor, a Mr. Raymond Chan Yuk Ming was inaccurate.

11. One of the commercial concerns which had an office in this building in 1990/1991 was Shun Cheong Electrical Co., an electrical and plumbing business run by a Mr. Fu Wing Cheong and owned by his wife. On a number of occasions this business was asked to quote for certain necessary work in the building by the Incorporated Owners through their Management Committee. It was not the only contractor engaged by the owners so to do. If the quotation was acceptable, Mr. Fu carried out the work. He employed casual labour and possibly some permanent labour.

12. The owners also employed a plumbing and electrical worker, no doubt for routine straightforward tasks of maintenance and repair, which could be managed single-handed. His name is Lai Chi Lung. He had a supervisor, a Mr. Lai Chung Tat. Mr. Lai Chi Lung knew some of the workers employed by Shun Cheong Electrical Co. and that the Incorporated Owners always asked Shun Cheong to carry out plumbing and electrical repairs.

13. On the 21st February 1991, the Plaintiff in this action, Mr. Ta Xuong, together with another plumbing and electrical worker, Mr. Wong Man On, both employed by Shun Cheong, were doing some renovation work for one of the tenants on the 10th floor of the building. They had a break for some tea in the middle of the afternoon and met up with Mr. Lai Chi Lung in the building. There is some dispute about whose idea it was that they should all have tea together, but that was what resulted.

14. Mr. Lai Chi Leung told the Plaintiff and Mr. Wong that he was experiencing difficulty in tracing a leak in a water pipe. There is some conflict about what resulted from the discussion about this. To the Factory Inspector in March 1991, Mr. Lai made a statement in which he set out that his supervisor told him to ask Shun Cheong's people to have a look and this is what he did, asking the two workers to help find out which pipe was leaking. In his oral evidence, Mr. Lai departed from this earlier version and alleged that the Plaintiff and Mr. Wong took it upon themselves gratuitously, as it were, to solve his problem for him.

15. This later version upon which the Defendants substantially rely is, at best, implausible. The written statement made to the Factory Inspector less than two months after the incident concentrates on the problem which he had been experiencing for some time. It clearly sets out that he had authority to seek the assistance of Shun Cheong's workers and that he did so. The Plaintiff and his colleague agreed to help. They were taken to the 3rd floor and had a view first from the window in the ladies toilet and then from the window in the male toilet. Mr. Wong Man On said that Mr. Lai Chi Lung suggested that they could climb out of the next toilet window (the one on the right) where they could have a view. I accept his evidence. It seems wholly logical and reasonable in the circumstances. The Plaintiff was able to climb out of that window onto some bamboo scaffolding and moved to the left in effect out of sight. His colleague who was neither as tall nor as adept, did not attempt to follow him but very shortly he heard a crack and saw that the Plaintiff had fallen.

16. How did the Plaintiff come to fall? When Mr. Hau, the Factory Inspector, visited the scene the next day, having learned of the accident from a newspaper report, he was taken to the 3rd floor by Mr. Lai Chi Lung and to the area of the toilets. He took photographs. He looked out of the window through which the Plaintiff had climbed onto the bamboo scaffolding. He noticed a recently fractured piece of bamboo scaffold pole to the left of the window out of direct sight but clearly visible when one looked out of the window to the left. It was at the end of that section of scaffolding. The leaking or burst pipe in question was also believed to be to the left but had not been seen from the window in the ladies toilet. He could also see a piece of pole dangling from a slightly lower level and he obtained a better view of this when he went down to the ground floor level to the scavenging lane. Photographs recorded both these aspects. Mr. Hau's opinion of the bamboo scaffolding was that it was old, to judge from its colour, and abandoned or disused. I am satisfied that the Plaintiff's fall was caused by a fracture of defective bamboo scaffolding, either under foot or at a higher level where its purpose was to serve as a protecting barrier. In either event it failed in its purpose. That bamboo scaffolding should not have been there. It served no current purpose as far as I can ascertain. It had deteriorated and was defective and had not been maintained. Its existence constituted a danger and in effect a trap for those who relied upon it.

17. How did the scaffolding come still to be in existence? That it had at some stage served a useful purpose in a contract for some external work is clear enough. On the evidence it is equally clear that it was no longer being used for its original purpose. Mr. Hau says he has often become aware of the existence of abandoned scaffolding remaining in situ. It has just not been removed by the contractors responsible for its erection, or by the owners and/or management of the building. It may be a question of expense, but it is clear that it deteriorates quickly and is not maintained in a safe state. The prime responsibility for the continued existence of such scaffolding, which has ceased to fulfil its original function, is that of the building owners who caused or permitted it to be there in the first place even if it was originally erected by the contractors themselves. Whilst it remains connected to the building, they, the building owners, remain responsible. Their remedy is quite simple. Either they require the contractors to remove it - I do not doubt the cost of provision, erection and removal was reflected in the contract price - or they themselves cause it to be removed. It is an invitation to burglars who can gain access to the higher floors of the building without having to go through the main entrance. It is also an open invitation to anyone required to do any work to the exterior of the building to use it and rely upon it as a means of access and support. Mr. Lai Chi Lung in his evidence said that he always climbed out of the windows and the scaffolding posed no problems for him. Mr. Lai Chung Tat said he believed the scaffolding in question was still in situ, or at least part of it was.

18. In this case there was no good reason why the Incorporated Owners should not have required the erecting contractors to remove it or have it removed themselves. They were singularly neglectful in this regard. On the occasion of my own visit to the premises it was clear that there were still sections of bamboo scaffolding in position. Most of it, possibly all of it, was old. There were broken sections, gaps and what appeared might be renewed sections. As a whole it served no useful purpose. Once the Incorporated Owners had left the scaffolding in situ they were responsible for its maintenance and repair. It was foreseeable that anyone seeking to carry out any external work, or simply an inspection, would feel the scaffolding was there to enable him to do so. It was equally foreseeable that there was a risk of fall, collapse and injury on scaffolding that was not maintained or complete. The Incorporated Owners liability under the Occupiers Liability Ordinance was clear. They owed a duty of care to the Plaintiff. They were in breach of that duty and negligent.

19. The Plaintiff had been asked by Mr. Lai Chi Lung to help him locate the leak. Mr. Lai in turn had been encouraged to seek help from Shun Cheong's workers if he could. The problem had been untraced for several days. The Incorporated Owners employed Mr. Lai and his supervisor to carry out necessary work, and employ when necessary, outside workers. The management, therefore, was vicariously liable for any actions by their employees or agents in the proper discharge of their functions. There existed no warning against or prohibition on the use of the scaffolding to carry out such work. The Plaintiff and his colleague already on the premises to carry out work for their employer were nonetheless entitled to the duty of care on the part of the occupiers. Having agreed to assist in tracing the pipe in question which required external inspection - the water was spraying externally - they were entitled to rely upon any scaffolding in position as being there to assist or facilitate such work. The fact that the Plaintiff was willing to assist either out of genuine good will or with the view to encouraging the owners or management to ask his employers to carry out any remedial work, does not lessen the duty of care towards him. There was no contractual relationship but he was entitled to the same standard of care as if Mr. Lai Chi Lung had himself ventured on scaffolding to trace the source of the leak.

20. Mr. Lai Chung Tat said that there were often problems with leaking pipes and that Mr. Fu's business (Shun Cheong) was often asked to deal with it and that he normally made contact himself, but some times asked Mr. Lai Chi Lung to ask Mr. Fu to look at the job. He said in respect of this incident that he had asked Mr. Lai Chi Lung to ask Mr. Fu to assist if he came across him. It is not surprising, therefore, that Mr. Lai Chi Lung told the Factory Inspector that Mr. Lai Chung Tat had told him to ask Shun Cheong's people to have a look. In evidence, Mr. Lai Chi Lung had said that he knew where the leak was coming from (i.e. the 3rd floor) having traced its site from his position in the scavenging lane. In that case, he would not need the Plaintiff's help which was in effect what he was trying to say. He is in my view wholly wrong and probably confused, perhaps by reason of the lapse of time, perhaps by reason of his age. Perhaps also in some part he feels a degree of responsibility for the accident and is trying to convince himself that the circumstances were different. What he told the Factory Inspector was reasonably proximate in time to the incident and more consistent with the other evidence I have heard.

21. The question then arises as to whether the Plaintiff was negligent himself to any extent in venturing onto this scaffolding. It is important to state that I accept his evidence in its entirety as to how he came to assist Mr. Lai; he had been prevailed upon to give help. It clearly called for external observation at or near the point which could be traced as the source of water. There was no reason why he should question the safety of using the scaffolding in question. There had been various works carried out externally and as far as he knew these were continuing, either for the owners as a whole, or for individual owners. The fracture and fall occurred very soon after he stepped onto the scaffolding. Unfortunately, the Plaintiff's memory of the immediately preceding events has been affected by the trauma. There is no evidence to suggest anything was wrong with the scaffolding on visual inspection from the open windows. Mr. Hau's attention was directed to the broken section and the dangling pole. I am satisfied that there was no contributory negligence on the Plaintiff's part. As I referred to earlier, the handyman, Mr. Lai, was prepared to use the scaffolding if necessary and had done so himself in the past.

22. Before I leave the question of liability I should say something about the expert evidence in this case.

23. I have referred to the evidence of Mr. Ian Cullen on behalf of the Plaintiff at an earlier stage, and also in passing to that of Mr. Raymond Chan on behalf of the Defendants. The justification for and ambit of expert evidence was extremely limited in this case. However, the Defendants undoubtedly placed some reliance on the report they received from Mr. Raymond Chan Yuk Ming, a chartered surveyor. To his report he attached a schedule of his experience in maintenance works. It included a contract with the Defendants described as "ongoing" and "surveying/repair". He said that his secretary had made a mistake and that the contract was complete. Furthermore, although described as "surveying/repair" it related only to some electrical work in the building, particularly the main cable. He said that the state of that was still substandard.

24. Mr. Chan had visited the site in question yet nowhere in his report was there any description of what he found, nor was there any criticism of or disagreement with Mr. Cullen in this respect. In answer to my question he virtually said that what he saw was the same as Mr. Cullen had seen two months earlier, although he later tried to say that he disagreed with Mr. Cullen's criticism that there was "generally a poor state of repair of many services". He said he would substitute the word "some" for "many". Mr. Chan has no expertise in relation to the erection, use and maintenance of scaffolding. It was also apparent that he had no understanding of the provisions of the Occupiers Liability Ordinance. I regret to have to say that his report was notably defective and, at best, misleading for the Defendants.

25. Although the Defendants were until shortly before the trial commenced, represented by solicitors, they had been unable to maintain that representation because a number of the owners had not contributed to the necessary funds. They had not been advised as to the proper procedure to be followed. However, I required their former solicitors to attend in order that the necessary formalities could be carried out to ensure their being in a position to represent their interest fully.

26. A form of authorization was signed by the Deputy Chairman of the Management Committee in a meeting, nominating three members to attend the trial and represent the owners. Only two were in fact valid nominees and free to attend. In the first instance, Mr. Koo represented the Defendants. He had some experience in building maintenance. I allowed him to cross-examine the Plaintiff's witnesses and decided to deal with the matter of liability first in order to accommodate him as he was not available for the full length of the trial. When witnesses were called for the defence I examined them in chief allowing their statements to stand as their principal evidence. I also asked Mr. Koo if he had any other matters in mind which he required these witnesses to deal with.

27. Mr. Koo was replaced by Mr. Hui. I was unable to let him deal with any cross-examination of witnesses on liability because he had not been present for most of the evidence but I put to the witnesses any matters which he wanted to explore. At the conclusion of the evidence on liability I invited Mr. Sarony to set out the issues and he helpfully did so in written form which he also read. I then invited Mr. Hui to say to me anything he wished and he did so. It was clear that he was concerned to explain the position of those owners who had contributed to the defence fund and that many had refused to do so. He also explained the Defendant's reliance upon their belief that the erectors of the scaffolding were responsible and that the Defendants believed Sun Hing Realty Ltd. were the owners of the external walls. It was clear that the Defendants had either not received proper advice or that they had not accepted it. The former situation seemed the more likely. Both Mr. Koo and Mr. Hui displayed good judgment, restraint and a recognition of the essential issues in their careful representation of the Defendants' interests.

28. A little earlier in my judgment, I mentioned evidence about a number of instances of bamboo scaffolding being left against buildings in Hong Kong after contractors have ceased to use it. Indeed, it is still connected to the Defendant's building today. Responsibility for such scaffolding rests primarily with the owners of the building against which it is erected. In practice, the contractors who erected and/or the contractors who have used it are responsible for it. But if it is not removed after use the building owners remain responsible although in some circumstances they can seek an indemnity from the contractors in respect of any claim arising from its use. They have, however, a simple remedy to avoid the risk of liability. That is to remove it forthwith. That is the only safeguard for them against a claim of this nature.

Quantum

Past Loss of Earnings.

29. The Plaintiff's rate of earnings for the year ended March 1991 were $134,160.00. On that it is calculated he would have paid tax of $1,134.00. By 1997 he would have been earning, applying % age increases, approximately $264,816.00 per annum. The total loss to date of trial is $1,321,608.00. He would have paid some salaries tax on this but the calculations indicate it would have been a modest sum. I propose to deduct $5,000.00 to cover that period, leaving a net pre-trial loss of : $1,316,608.00.

Future Loss of Earnings.

30. The base figure is $264,816.00 less current tax liability of $363.00 :

$264,453.00 p.a. But for the accident he would have worked until he was at least 65. He would probably have established himself as an independent contractor well before retirement and may well have worked beyond 65 years of age. Although there is inevitably a speculative element I should take the multiplier of 16 - he is now 37 years of age, therefore his working life would have been at least 28 years. The total loss under this head is $4,231,248.00.

Loss of retirement benefits under Mandatory Provident Scheme.

31. This scheme came into force this year. Employed persons have to pay 5% of their relevant earnings (as do the employers) into this fund. Self-employed persons also have to contribute 5%. As far as this Plaintiff is concerned, - he would have to contribute $13,241 per annum on his current income. Over a 28 year future working life this would mean a deduction of $370,748 from his income. His benefit would however have been a lump sum of the same amount after 28 years. Discounted to reflect accelerated receipt the figure for loss will be $211,856 (i.e. The employers annual contribution subjected to the multiplier of 16)

Medical expenses from accident to date.

32. These were agreed at $3,828.00.

Past Transport Costs.

33. Only a small percentage of these was agreed, the largest item being those incurred by the Plaintiff's wife in visiting him in hospital. Sometimes she travelled by taxi only, sometimes she used a combination of services. She considered that the average daily cost was about $200.00 for the round trip. In view of the nature and length of the journey and the duration of her visit to her husband, I consider these expenses reasonable. This head of loss is allowed in the sum of $71,023.40.

Miscellaneous expenses.

34. Items 2, 5, 11, 12, 16 & 26 are not agreed by the Defendants and so I propose to deal only with these. Item 13 is abandoned by the Plaintiff's counsel as it is conceded that it was a gift from compassionate neighbours.

Item 2. This supplement to his diet served a number of purposes; therapeutic, nutritional and cultural. I allow it in the amended sum of $70,021.52.

Item 5. This is a power unit with mattress. The expense is vouchered. It is reasonable -$2,900.00.

Item 11. The small item of a floor mirror, I allow it - $45.00

Item 12. Environmental control unit. It is essential for him to be able to regulate the temperature. He operates it with his chin. It is allowed - $4,700.00.

Item 16. Air mattress and pump. This too is essential for his comfort and well-being. It is allowed - $3,800.00.

Item 26. There were a number of modifications made to their small apartment paid for in cash. It is a very reasonable sum and all were necessary - $4,000.00.

The total of all the sums under this composite head is $206,775.72.

Care and Services of Wife.

35. Following the accident the Plaintiff's wife gave up her employment. She had been earning $40,320.00 per annum. The first period is whilst the Plaintiff was in hospital and she was making daily visits (apart from a short period when she gave birth to her daughter). It covered virtually a complete year. I have considered Housecroft v. Burnett 1986 1. A.E.R. p. 332, wherein the Court of Appeal indicated as a guideline that the commercial rate for such care would be the ceiling. In Hogg v. Doyle (unreported - Kemp & Kemp - The Quantum of Damages 51061.), the Court of Appeal upheld an award for care by the wife, who was a nurse, based on one and a half times her earnings. The court opined that since she was doing the work of at least two full-time nurses, a claim based on that cost would have been justified. A differently constituted Court of Appeal, but one containing at least one former practitioner in the field of personal injury litigation, decided in Fitzgerald v. Ford 1996 P.I.Q.R. Q72 that Hogg v. Doyle laid down no rule as to the uprating of the carer's loss of earnings as the measure for care. It is clear that the nature of the care and the nature of the employment surrendered, all have some influence on the proper level of remuneration. In this case I am satisfied that the Plaintiff's wife was to provide the level of care which would justify two carers. Indeed it is her utter devotion to her husband and her meticulous care which has ensured the current level of well-being. The claim is put on the basis of $7,500.00 per month - $88,125.00 for the near-year period. I think that is extremely reasonable. The dedication, and self-less impeccable care which she has given, at great cost to her own mental and physical well-being is covered by the reports and evidence.

36. The second period is from his discharge from hospital to date of trial, a period of 68 months. (5 2/3 years). The cost claimed is the sum of $15,000.00 per month, which is some where between the cost of a Chinese care assistant and a China Trained Nurse. Again I consider that figure to be a reasonable one. Accordingly the sum allowed for this second period is $1,020,000.00.

Cost of Future Nursing Medical Care and Equipment.

37. Although the Plaintiff would probably have retired at the age of 65, working intermittently thereafter particularly if he had established an electrical business, the medical evidence suggests he has a normal or near normal expectation of life, particularly if he is well looked after. Dr. George Koo in December 1996 gave his life expectancy, if properly cared for, as about 40 years from the date of his accident. He is now six years on, and more recently (April 1997) Dr. Koo has put this at about 35 years from the date of accident, making about 29/30 years from now.

38. Dr. Choa, the consultant neurologist agrees with this estimate. The Whiteneck Report (1995 Edition) is a detailed consideration of long-term survival of spinal cord injury victims. The long-term quality of care received by such persons, with many psychosocial factors, are important determinants of survival. There has been enormous progress towards reducing urinary tract infections as a dominant cause of mortality. Pneumonia remains the greatest threat but the other threats to life in normal healthy persons have taken over as leading causes of death. The victim however remains vulnerable to these somewhat earlier in his life than the undamaged individual. Septicaemia remains the third highest cause of death but life expectancy is expected to continue to improve. Respiratory complications remain a significant threat and on all the evidence this must be particularly so in the cases of complete quadriplegia. This Plaintiff falls within the Frankel Grade A, B, C of quadriplegia and deducing the reasonable life expectancy from the table in the Whiteneck paper applicable for a person who has survived at least one year from the injury, it is in the region of 23.7 years statistically. This of course is based upon data which ceased in 1992 the mid-period of which was 1982. It does not reflect the relatively optimistic approach in the latter part of the paper. However I have to bear in mind the following statement in that paper:

"There is common misconception, often expressed by many rehabilitation professionals, that as a result of recent medical advances, life expectancy for persons who survive the first post-injury year is either normal or reduced by at most 10%. While much progress has been made, there is clearly no justification for such statements."

39. A little further on is a caveat in respect of the statistical tables from which I have extracted the life expectancy period:

"Great caution should be exercised when applying these figures to individual cases for several reasons. First, considerable variability in injury severity exists within each neurologic group.... For example, the tabulated life expectancies for persons in neurologic group 1 (Plaintiff's group) would be.... underestimates for persons who were not ventilator dependent.... Moreover the effect of numerous psychosocial factors and the anticipated life time quality of care are also not considered, although they are difficult to quantify. Therefore more precise projections should be made for specific persons only by matching such characteristics of the individual as the exact neurologic level of injury and Frankel grade, age, gender, race, ventilator status, length of post-injury survival to date, presence of pre-existing or unrelated concurrent medical conditions, motivation in self-care, and availability of good medical care to the largest possible sample population."

40. I am of course unable within the confines of this case to carry out such a considered assessment. However a number of the features described are self-evident and I am aided by the opinions of Dr. George Koo and Dr. Brian Choa. I think the life expectancy should be approached on the basis of at least thirty years from now. The proper multiplier is one of 18 for whole life from now.

Physiotherapy

41. Mr. David Siu deals with the current and future position in his reports. The first period of thrice weekly sessions for a 12 week period is agreed at $28,800. It is reduced to once weekly for the following 12 weeks, at a cost of $800 a session. The total for this second period is therefore $9,600. For the rest of his life he will need this on a monthly basis. (David Siu - 16 June 1997 - p.459.) This will cost $9,600 p.a. X 17.5 = $168,000. The total under this head is therefore $206,400.

Occupational Therapy

42. I accept Miss Alice Tsang's evidence in her report as to the need for this. For the initial period of weekly sessions for 6 months I allow $10,972. Thereafter his requirements are once a month. I do not think it reasonable for the Defendants to be expected to pay for an extra four sessions per annum to train a change of carers. This will total $5,064 per annum X 17.5 = $88,620.

43. An average cost has been calculated by reference to a high ($800) private cost, and a low ($44) hospital cost, on the basis that sometimes he will have this therapy in a hospital, and sometimes in his home. Continuing therapy is essential for his mental stimulus and although there is a substantial difference between the two levels of cost I think it more likely than not that at least half of that therapy should take place within the home.

Psychiatric Treatment & Counselling

44. This is agreed in the sum of $108,000 and features in Dr. C.K. Wong's report.

Family Therapy

45. This is supported by Dr. C.K. Wong's report. The burden borne by the family hitherto has been incalculable. There is a need to prepare for the future and to deal with the past burden. I allow the claim at $45,000.

In-Patient Psychiatric Treatment

46. This provides for one 3-week period per year. The annual cost is $97,020. The need and nature is covered by Dr. C.K. Wong's report. The overall cost is $97,020 X 18 = $1,746,360.

Medical Consultations

47. Although Miss Alice Tsang suggests four consultations a year, Dr. George Koo considers, very reasonably, that there should be two specialist urological consultations per year. There is an overlap here. I think two consultations per year of the nature envisaged by Miss Tsang are sufficient together with two specialist consultations. This head will therefore be $4,320.

Urological Investigation Consultation

48. See above $14,000 per annum X 18 = $252,000.

Hospitalisation

49. This is the hospital cost of Miss Tsang's two consultations. $1,150 per annum X 18 = $20,020.

Case Manager

50. I have no doubt that this is essential. It monitors his progress regularly and anticipates any problems which might develop. $93,600 X 18 =$1,684,800.

Nursing Care

51. I accept the evidence that two carers to cover the 24 hour period are necessary. The Plaintiff's wife has coped hitherto but at such cost to herself in terms of her health and mental stress that she cannot reasonably be expected to continue. For the day-time shift a China Trained Nurse is justified. The annual cost is $231,410 X 18 = $4,165,380.

52. A Chinese Care Assistant is appropriate for the night shift. The annual cost is $151,840 X 18 = $2,733,120.

Domestic Help

53. Although the nursing burdens will no longer fall upon the Plaintiff's wife once she has the two China trained carers, others will remain. She is not physically fit and the past strain has taken its toll. She needs domestic assistance. She still has two children to cope with and, for a while at least, such a helper, if or when in possession of a driving licence, can give support when the Plaintiff is taken out in the vehicle. When the children are fully grown and virtually independent, and "pulling their weight" in the home, the need for and justification for such domestic assistance will have gone. It will have to be full-time and residential until that stage. The cost is $46,320 per annum plus a relief cost of $2,100 per annum when the helper goes on biennial leave, totalling $48,420 per annum. The Plaintiff's daughter is now 6 years of age. When she is 16 (and her brother will then be 21 years old) she should be in a position to help her mother. The domestic helper will have a ten year tenure. The appropriate multiplier is 7. Therefore this head of claim is allowed at $338,940.

54. The travelling fee for home leave (every two years) is put at $750 per annum. Miscellaneous expenses including cost of food, electricity, renewal of contracts is put at $2,000 per month. This is rather high in the light of current experience and I propose to allow it at $1,000 per month = $12,000 per year. The two items total $12,750 X 7 = $89,250.

55. I do not think that holiday relief help is necessary for the full period claimed (i.e. 65 days per annum) but I will allow 21 days per annum at the sum claimed. $220 X 21 = $4,620 X 7 = $32,340.

56. The agency cost is put at $4,000 per contract. It would be reasonable to allow for 3 over the period = $12,000.

Do-it-yourself expenses

57. The Plaintiff is a professional electrician and plumber. I anticipate that he would have been able to do necessary domestic carpentry. All that the home needed in these regards and by way of re-decoration would have been carried out by him. Now it will have to be paid for. $1,500 per annum is reasonable. It is a whole-life claim and therefore $1,500 X 18 = $27,000.

Transport Costs

58. An adapted vehicle is essential. I am satisfied that by now, he would, had he not suffered the accident, have purchased a motor car for family use. The probable cost of that would have been in the region of $150,000 (i.e. second-hand). The vehicle which is most appropriate to his needs is a Toyota Coaster although I would have expected a more compact vehicle to have been available on the market. The cost is $330,000. The net extra outlay is therefore $180,000. Miss Tsang calculates on the basis of two replacements to take him through his life i.e. a multiplier of 3. That is a little on the high side. Such vehicles are not replaced as often as cars are in any event. I will allow 2 as the multiplier to reflect this and the fact that he would have changed his private car more often resulting in a more frequent capital outlay. $180,000 X 2 = $360,000.

59. The cost of adaptation is $150,000. It seems on the high side but Miss Tsang's experience is a more reliable guide. I would have expected some of the adaptations to be transferred to the replacement vehicle in due course. In any event there may be a purpose built vehicle by then. I will allow a multiplier of 2 nonetheless. $150,000 X 2 = $300,000.

60. The licence fee would have been incurred for a private car. There may be exemption or reduction for a disabled person's transport.

61. I accept that there will be more use of this vehicle than there would have been of a private car, so there will be some increase in fuel consumption. I will allow an extra $300 per month, or $3,600 per year X 18 = $64,800.

62. Although I would expect car park fee concessions for this vehicle, it is larger than normal and there is likely to be some charge. I will allow $5,000 per year X 18 = $90,000.

63. Maintenance costs will be higher than an ordinary saloon car. Some maintenance he would probably have done himself. I will allow $5,000 per annum X 18 = $90,000.

64. There will probably be no difference in the insurance rates so no allowance is justified.

65. I do not consider the employment of a driver is justified. Mrs. Chan has a driving licence. In due course when life is easier for her she will feel able to and, I think, will want to drive. She will have alternative driving capacity from the domestic helper, who should be licensed, and the China trained nurse who ought also to be licensed. I should however allow for the fact that one of these may not have a driving licence and therefore may need to take lessons as well as to take the test. It would be proper to make provision for this and so I will allow $10,000 for a course involving about 30 odd lessons and incidental fees.

Future Aids & Equipment.

66. There are 53 items set out in the Plaintiffs updated Schedule of Damages. The former solicitors for the Defendants countered with lower figures (based essentially on a lower multiplier) or simply said the items were not agreed. I do not propose to review each and every item in detail. Accordingly I have added to a copy of the schedule my decisions as to multiplier and cost allowed. Where the Defendants did not agree the item in principle and simply stated "not agreed" and I have concluded that the item is both reasonable and necessary, I have simply inserted the figure under the column "sum allowed." The total of these sums in the schedule is - $3,300,203. [see attached schedule]

Future Recurring Miscellaneous Costs.

1. Cost for cellular phone service. Only one set is allowed. Half the cost is allowed = 10,000 X 18 = $180,000.

2. Additional electricity for equipment including environmental control. The sum is reasonable. $4,800 p.a. X 18 = $86,400.

3. Extra cost of washing powder.

This is reasonable - $520 p.a. X 18 = $9,360.

4. Extra toilet & tissue paper.

This is reasonable - $884 p.a. X 18 = $15,912.

5. Extra clothing.

There will be some but the amount calculated is overstated. I will allow $3,000 p.a. X 18 = $54,000.

6. H.K.A.A. membership.

This is clearly essential. I accept that may not have joined otherwise.

$750 p.a. X 18 = $13,500.

The total under this section is - $359,172

Accommodation, Adaptation & Removal Expenses.

i) Accommodation.

67. The present accommodation is quite inadequate. The Plaintiff has one bedroom and his wife shares the second with the two children. The children are now of an age when they should have their own rooms. The Plaintiff needs a room of his own, as does his wife, a fourth bedroom is necessary for the domestic helper and for the nurse and carer to use and have access to. Their current property is approximately 500 square feet in area. They need a five bedroomed apartment of about 800/900 square feet. It needs to be on the ground floor. Although they are buying their present accommodation on mortgage the size of the accommodation they need would require a substantial outlay of capital, even if they were able to find one they could purchase. It is more likely that the appropriate size of accommodation would be rented rather than purchased.

68. I have to bear in mind a number of factors. Although by now, but for the accident, they would have been considering a larger apartment in order to give the children their own bedrooms, it would not have been as large as they now need. I am satisfied these needs would then have been met by a three bedroom apartment, not a five bedroom one. Secondly their need for a five bedroom apartment will not be permanent. After the children have left home they will probably revert to a three bedroom one. The availability of a five bedroom apartment for purchase as opposed to rental, is uncertain. Finally, it is by no means clear when the Plaintiff will have his judgment satisfied so the availability of capital for purchase is uncertain.

69. I have decided that the only fair way of dealing with this head of claim, is by reference to the rental which will have to be paid, less the notional rental value of the Plaintiffs existing home.

70. The report of Peter Cheung Surveyors Limited considers two developments, the largest unit of which is just under 800 square feet, less than Miss Alice Tsang considers necessary. I think I should take the higher rental set out by Mr Peter Cheung of $11,000 per month. From that is to be deducted the notional rental value of the existing apartment of $4,200 per month. This is a figure net of the monthly mortgage payments. Since the mortgage will have been repaid in two years time the notional rental will be $5,350 thereafter.

71. The appropriate multiplier should be one that reflects the reduction in the size of the household when both children have left home i.e. in approximately 15 years time. I consider it should be 11. For the first two years the difference will be $11,000 less $4,200 = $6,800 X 12 = $81,600 p.a. X 2 = $163,200. Thereafter it will be 11,000 less 5,350 = 5,650 X 12 = $67,800 p.a. X 9 = $610,200. The total under this head is therefore $773,400.

ii) Moving expenses

72. The cost of a removal is estimated to be $5,000. The Plaintiff would have made one removal in any event but I accept that there will be the cost of removal from the larger home to the smaller, when the children are no longer living at home - $5,000.

iii) Legal cost of tenancy agreement.

73. This will be incurred on the occasion of each renewal (every 2 years). There would have been legal expenses in any event on the move to a larger apartment. I should therefore allow for 7 to reflect a 15 year occupancy of the larger rented accommodation.

$10,000 X 7 = $70,000.

74. Stamp duty on the above $500 X 7 = $3,500

iv) Agency fee.

75. I will allow for one on the basis that the Plaintiff will retain the same larger accommodation for 15 years. Therefore $10,000.

v) Cost of alterations to new apartment.

76. This will be necessary on moving into the larger new apartment, and on reverting to smaller apartment. I therefore allow 2.

$102,333 X 2 = $204,666.

vi) Annual management fees.

77. Management fees would have been paid in any event. I allow them at half the amount claimed on the larger apartment applying a multiplier of 11 - $6,000 p.a. X 11 = $66,000.

vii) Rates

78. I similarly allow this at half the rate claimed applying the same multiplier - $4,000 X 11 = $44,000.

79. The total under this section is $1,176,566.

Additional cost of holidays for carers to accompany; air fares, accommodation etc.

80. It is not clear how often the Plaintiff would have taken a holiday. Apart from the occasional trip to Australia to see his family, holidays would probably have been modest both in nature and cost. The need however is greater now. The reasonable yardstick would be a trip abroad every 4 years - the cost would be in the region of $50,000 X 4 = $200,000.

Fund Manager.

81. He and his wife will need the services of a fund manager although there is uncertainty as to how long it will be before the fund (i.e. the damages) is realised. It may come in tranches. I consider the fairest way to approach this is for me to work on the basis that 50% of the damages will go into the fund. Other sums will go into conventional savings schemes where there is easier access to withdrawal. At 1.75% of $12,826,950. this aspect will be allowed at $224,471.

Pain, Suffering and Loss of Amenity

82. I have left this element of damages to the last even though it is, of course in principle, if not in amount, the most significant since it represents the conventional assessment of the compensation for the injuries and their intrinsic sequelae. Compensation is understandably rejected as an accurate term to use. Equally conventionally, certain types of injury and concomitant disabilities have attracted certain awards. There is always an arbitrary aspect to such awards. I intend to set out what I regard as the essential features of quadriplegia (or tetraplegia) distilled from a variety of cases, how I should approach these in terms of the awards for such an extreme state, and the degrees of quadriplegia accepting that these variations are probably themselves of marginal significance to the sufferer and then relate the Plaintiff's position to them with what I regard as the appropriate award. I intend to exclude any consideration of that evaluation which is accompanied by brain damage which renders the victim unaware of his state.

83. The quadriplegic state involves paralysis of all four limbs. In the extreme state the victim is unable to move his head and may be incapable of anything other than facial gestures; he may even be blind. In such a state he is entirely dependent upon others, within or without the family, for every action essential to survival. The arguably marginally less severe state is one in which the person is able to move his head, converse fully and use some part of his face or head usefully - i.e. switching items on and off, gripping, for writing or painting, instruments with his teeth. To all intents and purposes however, he is virtually helpless, totally dependent upon others. Dr. C.K. Wong described this Plaintiff as being "imprisoned in the totally crippling state of tetraplegia", "trapped in the most agonising kind of human existence", and "incarcerated in a body that is nothing more than an absolute burden to him. "Although these are somewhat emotive phrases they do convey something of the awful state which none but the victim can fully describe. Perhaps in the past some judges and lawyers have too often used phrases like "standard paraplegic" or "middle of the road quadriplegia" as if the state were common place and readily categorised by an unknowing observer.

84. There is no sense of privacy; the physical relationship in a marriage has gone for all time, the minimal contact remaining is essentially one-sided. For a person in the prime of life there is no prospect of a worthwhile substitute career, the ability to share in the bringing up of children has gone, and all these have been replaced by a perpetual sense of being a burden, however professional and sensitive the therapist or counsellor may be. There are regular physical checks, trips to hospital, medications, toilet services and changes of clothing.

85. In the 3rd edition of the "Guidelines for the Assessment of General Damages in Personal Injury Cases" published by the Judicial Studies Board (of the U.K.) (John Cherry Q.C. et al.) the following are set out as the considerations affecting the level of the award - i) extent of residual movement ii) pain iii) effect on other senses iv) depression v) age and life expectancy.

86. Dealing with each in turn with reference to this Plaintiff - i) he has head and facial movement ii) he has persistent head and shoulder pain and spasms iii) he has his sight, hearing, and his head and face retain their sense of feeling iv) depression is acute and likely to be long lasting v) he is only 37 years old with near enough a normal life expectancy. Dr. C.K. Wong's report reflects all aspects of his disability with a sensitive assessment.

87. In the publication I have referred to the range of damages for this physical state is (110,000 to (130,000, and reflected awards in the United Kingdom up to September 1996.

88. In my view the awards in the United Kingdom are too low in the category of "disaster cases". One of the reasons is that no sufficient distinction is made between awards for quadriplegia and paraplegia on the one hand and those for other catastrophic states such as total blindness and deafness, which awards themselves are not sufficiently differentiated from other but less devastating injuries.

89. It is well-known that awards for neck and back injuries (short of paralysis) were for a significant period in the past undervalued in terms of damages. An important feature in the overall scale of evaluation is that it is only in the past 40-50 years that the courts have been concerned to assess damages for paraplegia, and perhaps more recently than that for tetraplegia because few survived the initial trauma, succumbing to shock, pneumonia or urinary infections.

90. There has been a concern to keep the level of damages in line with conventional assessments for other types of injury for good reason - there is always a risk of assessment being determined by emotive considerations (as are jury assessments), and there is a need for consistency. But that has acted as a straitjacket rather than as a dispassionate judgment reflecting fairness and recognition of obvious disparities. As the lower end of the scale simple fractures have perhaps attracted excessive awards, at least by comparison with the major injuries. Another area in which a more realistic assessment of damages is currently being made is psychiatric injury but, here the ambit of assessment is very wide indeed and quite complex.

91. In the recent case of Chan Pui-Ki v. Leung On and another [1996] H.K.L.R. Vol.2 p.401 the Court of Appeal upheld the learned trial judge (Mr. Justice Peter Cheung) in his level of awards for various categories of injuries on the basis that they were correct at the time of its own judgment. The case was concerned with other aspects of awards of damages with which I need not be concerned here. The upper two categories were "gross disability" - $660,000 to $1m; and "disaster" - $1 million upwards. The Court of Appeal's decision was in July 1996.

92. Mr. Justice Cheung in Ng Kwok Wing v. Lau Ping Kwan & others - 23 May 1996, awarded the Plaintiff, also paraplegic as a consequence of his injuries, $1.5 million. The Plaintiff in that case suffered a number of other injuries including fractures of the ribs, and left tibia and a rupture of the diaphragm. An extensive infection of the right hip developed requiring operations. As a consequence, the right hip is frail and he needed support for the lower limbs when being transferred from the wheelchair. He was at trial, 47 years of age, and living, wholly inappropriately, in a home for the aged, a most depressing environment which served only to accentuate his disabilities. His wife was too depressed and traumatised to cope with his disability.

93. The learned trial judge had the advantage, as I had, of evidence from Dr. C.K. Wong, Dr. Brian Choa and Miss Alice Tsang. Desperate though the circumstances of that Plaintiff undoubtedly were, Mr. Ta Xuong is in a far worse position. He has no upper body mobility whatever, with the exception of his head. He also suffered some additional fractures but given the overall sequelae of the accident these, like those of Mr. Ng kwok Wing, merge into the disastrous physical state. For the past six years although not having to endure the environment of the Fu Ka Home, he has seen his wife worn and stressed to the limit of her endurance trying to cope within the confines of a very small home. To what extent should one reflect the difference between Mr. Ng Kwok Wing's disastrous state which has left him with some upper body strength, the ability to use his hands, operate his chair himself so as to manoeuvre and provide a degree of independence inside and outside his home including feeding himself, and that of Mr. Ta Xuong who has none of this, albeit diminished, ability? It is not possible to quantify this in terms of percentages so as to reach a figure. Nor can one look at lesser states of disability and apply a multiplier. There must be some regard too for the constraints imposed by the need to respect a conventional approach to awards.

94. A tetraplegic victim would regard the gulf between his own disability and that of a paraplegic victim as immense; and vice versa. That is itself a factor to be put into the equation. Mr. Justice Cheung's approach has been echoed by Mr. Justice Leong's award, in Choi Mei Ho v. Liu Yuk Wah - 20 March 1997, of the sum of $1.5 m. for a 46 year old woman with a reduced life expectancy and features which were very similar to those of Mr. Ng Kwok Wing - and of course the Plaintiff in this action.

95. These awards are then the starting point for my assessment of the pain, suffering and loss of amenity element of Mr. Ta Xuong's claim. The difference in disability is significant. This, too must influence the psychiatric consequence. In terms of life expectancy there is a greater risk for Mr. Ta. The almost total loss of human physical contact is a factor not to be overlooked - at best he is a passive recipient. I need not dwell upon all the features which are set out in the reports fully. In my view the proper award is one of $2 m.

Summary [see Summary of Damages].

96. There will be judgment for the Plaintiff for $25,878,372 damages together with the costs of the action to be taxed. There will also be an order for the Plaintiff's costs to be taxed under the Legal Aid provisions.

97. The costs of the first day of this trial, were wasted by reason of the failure of the Defendants former solicitors to comply with a court order made on the 18th September 1997. I gave notice to them to show cause as to why they should not personally bear such costs as a result of which they wrote to the court to say they did not intend to show cause or oppose such an order. Accordingly the Plaintiff's costs thrown away on that day are to be paid by the solicitors to the Director of Legal Aid, to be taxed if not agreed.

98. In the summary set out I have deducted the award under the Employees Compensation Ordinance from the past loss of earnings. The Plaintiff is entitled to interest at the prevailing rates on the various heads of damage.

(Conrad Seagroatt)

Judge of the High Court

NOTE: Since this judgment was delivered, my attention has been directed to some errors in multiplication and addition. Some of these are typographical. At the time of delivery I indicated that my figures should be checked because there was possibility of such error. I have rechecked them, made the necessary corrections and adjustments, and exercised my residual discretion to do so, so as to avoid unnecessary cost being expended in so doing. Some adjustment may be necessary to the interest calculations but this will be minimal.

SCHEDULE

(5) FUTURE AIDS AND EQUIPMENT

Multiplier of 15 used for items agreed.

SUMMARY OF DAMAGES

* = Linked.