CHAN HAK FOON v. SUTERA HARBOUR RESORT SDN BHD AND ANOTHER

HCPI 386/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 386 OF 2003

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ASSESSMENT OF DAMAGES

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Application

1. This is an application for assessment of damages by the Plaintiff for the personal injuries suffered by him.

Background

2. The Plaintiff was born on 10 October 1942 in Hong Kong.  Upon completed his undergraduate degree in Hong Kong, he went to further studies in the States.  He obtained a M.A. in Chemistry from Bowling Green State University, Ohio in 1968 and a Ph. D. in Organic Chemistry from the University of Michigan in 1971.  In 1980, he was awarded a Diploma in Business Management by the University of Pennsylvania.

3. From 1973 to 1991, the Plaintiff worked in a major specialty chemical manufacturer called Rohm and Haas Company in Philadephia.  In 1986 and 1989, he was promoted to the position of the Area Director of South Asia and the General Manager in HK/PRC respectively.  In 1992, he started his own business in the manufacturing and sale of construction chemicals/water proofing products.  He set up Permtex International Ltd. (“Permtex”) and acquired Fabri-Technic Engineering & Trading Co. Ltd. (“Fabri-Technic”).  The business was successful.

4. The Plaintiff has been married to Miss Chan Lim Kie Tjeng Cynthia since 1968.  They have 2 children.  The Plaintiff was in good health and enjoyed a variety of sports activities.  At the same time, he was also a writer and published no less than 9 Chinese novels.

5. In mid 2000, the family went for vacation to Sabah, Malaysia.  They chose Sutera Harbour Resort, an integrated resort complex (“the Resort”) comprising, inter alia, the Sutera Harbour Marina Golf & Country Club (“the Club”), the Magellan Sutera (formerly known as the Magellan Sutera Hotel & Spa) and the Pacific Sutera (formerly known as the Pan Pacific Sutera Harbour Hotel).  At the material times, the 1st Defendant was responsible for the management and/or operations of the Resort while the 2nd Defendant was the owner of the Club.

6. At about 2:30 p.m. on 6 August 2000, the Plaintiff walked down from the half-landing of a flight of marble stairs (“the Staircase”) between Levels 1 and 2 of the Club.  He suddenly slipped and felt down the Staircase.  The Plaintiff tried to grab the wooden handrail but it did not stop him from further slipping and/or failing.  Just before he reached the bottom of the Staircase, he caught hold of the wooden newel post at the end of the handrail.  However, both the post and the handrail collapsed onto the Plaintiff’s face and chest.  He fell backwards, landed on his back onto the marble floor and sustained serious injuries.

7. The Plaintiff was immediately taken to the Intensive Care Unit of the Queen Elizabeth Hospital in Malaysia.  Emergency bilateral craniotomies were performed to evacuate the epidural and subdural haematomas.  A few days later, on 10 August 2000, he was transferred to the Queen Mary Hospital in Hong Kong.  The Plaintiff underwent quite some treatments including an extension of right parietal craniotomy to a large decompressive craniectomy and a limited right tempora lobectomy.  His post-operative condition was further complicated by left craniotomy wound dehiscence and episodes of pneumonia.  He was hospitalized there for 39 days and thereafter transferred to MacLehose Medical Rehabilitation Centre for a further 38 days.

8. On 15 November 2000, the Plaintiff was re-admitted to the Queen Mary Hospital for 5 days for a cranioplasty.  Thereafter, he  continued to attend hospitals for follow up treatments until now.

9. On 8 April 2003, the Plaintiff commenced the present proceedings against the Defendants.  Leave was granted by this Court on 11 July 2003 to issue the Concurrent Writ against the Defendants in Malaysia.  However, the Defendants did not take any step to defend despite they had been properly served with the proceedings.  I understand that the Defendants do not agree to submit to the jurisdiction of the High Court of Hong Kong and have instructed Messrs. Lawrence Pereira & Partners, advocates & solicitors, to offer to negotiate for settlement with the Plaintiff.  Further, they indicated that they would defend for the proceedings when it came to the enforcement stage.

10. Anyway, on 11 September 2003, the Plaintiff obtained an interlocutory Judgment against the Defendants with damages to be assessed/costs to be taxed.  Further, the PI Master, on 11 April 2005, granted leave for the Plaintiff to set down the case for assessment of damages.  The matter went before me on 15 September 2005.  The Plaintiff was represented by Miss Catrina Lam of Counsel while both Defendants were absent.

Ruling

11. Having considered the evidence, authorities and submissions before me, I have come to the conclusion that the claims of the Plaintiff are to be allowed.  In short, the medical evidence of the Plaintiff are not in any way challenged.  The same applies to the evidence of the Plaintiff and his wife.  In any event, I find both of them honest and reliable.  Finally, I also accept the suggestion of the amount of damages made by Ms. Lam according to the authorities referred to me by her.

PSLA

12. Dr. Yong Peng Hong, the Clinical Specialist and General Specialist of the Queen Elizabeth Hospital, Malaysia, described the injury suffered by the Plaintiff as follows:

“…… HE SUSTAINED LOSS OF CONSCIOUSNESS AND ON ADMISSION, HIS BLOOD PRESSUARE WAS 130/68mmHg AND PULSE RATE WAS 1000 BEATS/MIN.  HIS GLASGOW COMA SCALE WAS 10/15 (E3, M5, V2).  HE WAS INTUBATED AS HE WAS BLEEDING FROM BOTH NOSTRILS AND THROAT.  HE HAD REDUCED AIR ENTRY IN THE LEFT LUNG.

CXR REVEALED FRACTURES OF LEFT 4th – 6th RIBS AND ASPIRATION IN THE RIGHT LUNG.  CERVICAL AND PELVIC RADIOGRAPHS DID NOT REVEAL ANY FRACTURES.  CT SCAN OF THE BRAIN SHOWED:

1. A LARGE EXTRADURAL HAEMATOMA IN THE LEFT POSTERIOR PATRIETAL REGION.

2. A LARGE SUBDURAL HEMATOMA IN THE RIGHT PARIETO-OCCIPITAL REGION.

3. MULTIPLE SMALL INTRECEREBRAL BLEED IN THE RIGHT TEMPORO-PARIETAL AREA AND THE LEFT FRONTAL AREA.

4. GROSS CEREBRAL EDEMA.

5. FRACTURE OF THE LEFT PARIETAL BONE EXTENDING INTO THE PETROUS TEMPORAL BONE.

6. FRACTURE BASE OF SKULL WITH BLOOD IN THE SPHENOIDAL, POSTERIOR ETHMOIDAL AND MAXILLARY SINUSES.

7. FRACTURE LATERAL WALL OF RIGHT ORBIT.

HE HAD CHEST TUBE INSRTION ON THE LEFT SIDE AND AN EMERGENCY BILATERAL CRANIOTOMY AND EVACUATION OF CLOT WAS PERFORMED.  BLEEDING ON THE LEFT SIDE WAS FROM THE LEFT SIGMOID SINUS AND WAS CONTROLLED WITH SURGICEL AND PRESSURE.  BLEEDING ON THE RIGHT SIDE HAD SUBSIDED DURING SURGERY AND UNDETERMINED.  REPAIR OF HIS LACERATED UPPER LIP AND PACKING OF NASAL CAVITY WAS ALSO PERFORMED.”

13. The Plaintiff himself also said in paragraph 21 of his witness statement that:

“Although the Accident happened over 4 years ago, I am still suffering from the following:-

i.	Residual pain, headaches, dizziness, onsteady gain;
ii.	Both sides of my skull are caved in badly;
iii.	A very bad running nose whenever I eat which is very embarrassing as I am unaware of it due to loss of feeling of the nose;
iv.	Impaired mental acuity, thinking is slow and difficult.”

14. I accept that the injury suffered belongs to the top end of the “serious” category.  By the Further Revised Statement of Damages, the Plaintiffs sought an award between $700,000 to $800,000.  Based on the authorities produced by Ms. Lam, the injuries suffered by the Plaintiff are probably a bit less serious than those in Tsoi Yau Ya v Chan Kwok Hung & Anor, HCPI No. 1388 of 1999, Lam Lo Bun v Hong Kong Aerosol Co. Ltd & Others [2001] 1 HKLRD 540 and Hui Yiu Wing v Regional Council & Another, CACV No. 542 of 2001 whereby all the Courts awarded the sum of $800,000.  In my view, $750,000 is appropriate in the circumstances.

Loss of Pre-trial Earnings

15. Based on the salary tax return of the Plaintiff and the accounts of Permtex, I agree to accept that the Plaintiff, before the accident, earned about $47,439 per month.  The Plaintiff also told this Court that he was unable to resume his position of managing director for Permtex, and as such, he had to sell 400,000 shares held by him.  In the circumstances, his pre-trial loss of earning from 6 August 2000 to 15 September 2005 is:

$47,349 x 61 months	2,888,289
Less: sale of $400,000 shares @ $1 per share	400,000
	2,488,289
	=======

Loss of Future Earnings/Earning Capacity

16. The Plaintiff was at the age of 57 when the accident occurred, and now 62.  There is no evidence to contradict the suggestion that he enjoyed good health prior to the accident.  I agree to accept the multiplier of “4” suggested by Ms. Lam.  Given Dr. Yu’s suggestion that the Plaintiff could still be employed to do jobs not requiring leadership, managerial or administrative abilities, I also agree that a sum of $5,500 should be taken into account as an average income that the Plaintiff should be able to earn.  Hence, I will allow a sum of $2,008,752 [($47,349 - $5,500) x 12 x 4] under this head.

Special Damages

17. All the Special Damages were documented and/or supported by the evidence of the Plaintiff and his wife.  They were not challenged and I see nothing unreasonable in nature and in quantum.  They are allowed without any deduction.

		$	$
(a)	Medical expenses
	(1)    Queen Elizabeth Hospital	9,292
	(2)    Queen Mary Hospital	4,148
	(3)    MacLeHose Rehabilitation Centre	2,584
	(4)    Out-patient Treatments	2,501
	(5)    Dental treatments with Dr. Dominic Tse	18,210
	(6)    Driver Assessment at Rehabaid	40
	(7)    Consultation with Dr. Peter H.T. Wu	2,000
	(8)    Consultation with Dr. Fung Ching Fai	4,750
	(9)    Acupuncture at Wong Ying Nam Chinese         Medical Clinic ($250 x 6 visits)	1,500
	(10)  MRI Scans ($5,000 x 2 scans)	10,000
	(11)  Hong Kong Sanatorium Hospital	4,815
	Sub-total:		59,840
(b)	Chinese Herbs and Medicine		8,555
(c)	Traveling expenses of the Plaintiff and his wife		27,008
(d)	Nouishing /Tonic Food		78,000
(e)	Damaged Clothing and Shoes		3,000
(f)	Broken watch, Spectacles, Jewellery and Pen		4,000
(g)	Supplies for use in hospital		3,000
			183,403

Future Medical Expenses

18. There is nothing to contradict the opinion of Dr. Yu Chung Ping, the Neurological Consultant.  I agree to adopt the estimated costs suggested by him in the total sum of $284,800.

“Estimated costs of such treatment in a private hospital general ward class:

1. Assessment by specialist: HK$500 to 800 per session, at monthly interval.

2. CT brain at HK2,000/scan.  MR brain (preferred) at HK$5,000/scan.

3. Revision of shunt: total cost at HK$100,000.

4. Revision cranioplasty at HK$150,000.

(Report dated 7 October 2002)”

Loss of Income by the Plaintiff’s wife

19. The Plaintiff’s wife was a property agent of Brooke Hillier Parker Services Limited.  She received a basic salary and a commission at the rate of 20% of the sales successfully procured by her.  Upon the evidence produced by her, I agree to accept that, on average, prior to the accident, she earned about $23,887.65 per month.  In light of the injury suffered by the Plaintiff, I accept that it is reasonable for her to leave the employment from August 2000 to March 2001 to take care of the Plaintiff.  Since late March 2001, she returned to her work, albeit on part-time basis only until August 2002.  Thereafter, the Plaintiff’s condition was stabilized, she resumed her work.  In the circumstances, I allow her loss of income in the total sum of $449,253 ($23,887.65 x 24 - $124,050).

Interest

20. Ms. Lam asked for interest on General Damages at the rate of 2% from the date of writ to the date of Judgment.  She also asked interest on Special Damages at half judgment rate from the date of Accident to the date of Judgment.  I see no reason not to allow such claims.

Conclusion

21. In the circumstances, I award to the Plaintiff damages in the sum of $6,164,497 together with interest on $5,981,094 at 2% per annum from 8 April 2003 to today, and interest on $183,403 at half judgment rate (i.e. 5.99% per annum) from 6 August 2000 to today.

	$
PSLA	750,000
Loss of Pre-trial Earnings	2,488,289
Loss of Future Earnings/Earning Capacity	2,008,752
Special Damages	183,403
Future Medical Expenses	284,800
	--------------
Loss of Income by the Plaintiff’s wife	449,253
	6,164,497
	=========

Costs

22. There will also be an order nisi that costs of the Plaintiff in relation to the assessment, including Certificate for Counsel on 15 September 2005, be borne by the Defendants to the Plaintiff, to be taxed if not agreed.