LEUNG KWOK BIU v. TAM SAN YU t/a NEW SHINE ENGINEERING CO AND OTHERS

HCPI 810/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 810 OF 2008

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J U D G M E N T

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1.  This is a trial for assessment of damages. Judgment on liability has been entered against the 1st and 4th defendants. They in fact have not taken any part in this action. The action as against the 2nd and 3rd defendants has been discontinued. The 5th defendant was joined on 21 October 2010 on its own application. It intervened on quantum only.

Evidence of injury and aftermath

2.  The plaintiff was employed by the 1st defendant as an air-conditioning installation and repair technician.  On 17 November 2005, he was sent by the 1st defendant to work at a site in Ho Man Tin, Kowloon of which the 4th defendant was the principal contractor.  In the course of work, he fell from a working platform of 2.87 metre high and was injured.  He fell into a coma.  He was admitted to Kwong Wah Hospital (“KWH”).

3.  The following are gathered from his 2nd revised statement of damages dated 9 August 2011 and medical reports.  He was intubated for airway protection and sent to the ICU.  Investigation showed that he suffered a fracture of cervical C1 (Jefferson Fracture) with associated cord oedema at C1-2 level.  He gradually regained consciousness to normal level but was tetraplegic.  He was transferred to the orthopaedic ward on 23 November 2005 for further management.  He wore a halo ring and a jacket over his chest for cervical protection.  The ring and jacket were only removed in about April 2006.  Whilst he had the ring and jacket on, he could not move or rotate his body and acnes developed all over his back.

4.  He was transferred to Kowloon Hospital (“KH”) on 28 November 2005 for orthopaedic, physiotherapy and occupational therapy treatment.  He always had fever and shouted loudly for no reason.  He was discharged home on 4 July 2006 after 229 days of hospitalization.  He had to receive outpatient treatment from the Orthopaedics and Traumatology Department (“O&T Department”) of KWH.  From 18 July 2006 to 21 June 2011, he received 24 such treatments.

5.  He also attended the O&T Department of KH twice between January and July 2007, the O&T Department of Prince of Wales Hospital (“PWH”) 4 times between August 2009 and April 2010 and the Urology Department of Queen Elizabeth Hospital (“QEH”) 8 times between October 2006 and April 2011.

6.  From 11 July 2006 to 18 October 2007, he received 89 sessions of physiotherapy at KH.  From 4 August 2009 to 8 February 2011.  He received another 39 sessions of physiotherapy at PWH.  He also received physiotherapy from a private physiotherapy clinic on 10 April 2009 and 17 May 2011.  He attended a bonesetter clinic on 18, 19 and 20 April 2007 because of severe back pain.

7.  He also received 121 occasions of hydrotherapy from 25 July 2006 to 17 April 2010 at the Caritas Harold H W Lee, C&A Home.  This therapy continued after 17 April 2010.

8.  He also had 69 Chinese medical and acupuncture treatment sessions at Pok Oi Hospital.

9.  In addition, he also received 9 psychiatric treatments at PWH from 29 April 2009 to 27 May 2010.

10.  He was granted sick leave from the date of accident of 17 November 2005 to 11 October 2011. 

11.  At the trial, he adopted his witness statement which contained similar complaints as in his 2nd revised statement of damages. He complained of neck pain, frequent upper and lower limbs spasm, numbness and joint pain which necessitated the taking of analgesics.  He had spasm 3 times a day and 4 to 5 times a night with the night-time spasm more severe.  The frequency also increased in winter and he had to control it with pills which at times did not work.  Frequent massage was therefore required from his wife.  His neck, 4 limbs and the whole body was stiff and could not rotate throughout the day and night.  His 4 limbs were powerless.  He could not hold chopsticks.  He would suffer if he should hold a still posture for a long while. 

12.  His upper limbs were stiff and he was unable to lift them.  Therefore he could not change clothes, took shower, brushed teeth, took care of his hygiene, drank water, woke up in the morning and went to toilet etc.

13.  He had persistent loss of sensibility of his lower limbs which also suffered from severe numbness and were powerless.  He could only walk a few steps with roller indoor.  He could stand for about 30 seconds.  He needed to hold the handrail or put his hands on the wall in order to raise his body from the wheelchair.  He had to be heaved to the toilet by his family members or use metal frame for assistance.  He used wheelchair at home and for outdoor activities.  He needed accompaniment whenever he went out and depended on his family for most activities of daily living.

14.  He had double incontinence.  He required catheter to release urine and took medicine to release faeces twice a day.  He relied on enema.  He was unable to sleep well.  He complained of insomnia and poor concentration.  He needed medication for sleeping.  He also had tension type of headache, easy wakefulness and frequent dizziness.  His memory has greatly deteriorated and was unable to recall a lot of things in the past.  He was also anxious of falling and had difficulty in concentrating.  He had brace scars on his scalp. 

15.  He reported of hearing 3 to 4 non-existent female elderly human voices of unclear content and of unknown identities both at daytime and at night.  He also reported of seeing 2 persons at night that looked like elderly people.  He also mentioned suicidal ideas but had not made any attempt.  The main stressor was the rumination of his physical disabilities.

16.  Psychologically, he suffered from depressed mood with reduced interest and pleasure in activities most of the time.  He had become socially withdrawn and stayed at home most of the time.  He had poor social motivation due to depressed mood.

17.  His temper had become bad and his thinking negative.  His relationship with his wife and children had deteriorated.  He had sudden flash back of the accident and frequent nightmare.  He always dreamt of falling into a manhole or bumping into others.  He was easily stunned by sudden noise.

18.  Before the accident, he had many friends.  His hobbies were photography and Chinese calligraphy.  He had changed into a different person.  He could not pursue his hobbies.  He was preoccupied with his physical discomfort and related limitations in personal and social functioning.  He had a sense of worthlessness, hopelessness and helplessness with low confidence.  He felt that he was a burden to his family and has guilty feelings towards them.

19.  He was unable to have gainful employment and relied on support by his sons.

20.  In examination in chief, he added that he had to sleep in a bed in the sitting room which was positioned next to a wall.  The reason was his inability to walk into the bedroom as he had to be on a wheelchair.

21.  He went out for tea and dim sum 2 to 3 times a week in the company of his wife.

Video clips

22.  In addition to the plaintiff’s own evidence on his disabilities and problems, the 5th defendant had also engaged surveillance people to take video clips of him on 1 March 2011 and 11 and 18 October 2011. The video clip of 1 March showed his visit to an outpatient clinic and his way home until he boarded a taxi.  I would refer to the description of his movements made in a joint evaluation report dated 13 July 2011 by two rehabilitation consultants.  The report said:

“As observed on surveillance recording:

Sitting: Mr Leung did not appear to have any difficulty seated in his wheelchair while waiting at the out-patient clinic. He was able to hold both legs up against gravity in a semi-extended posture when the wheelchair leg-rests were not in use.

Standing: Mr Leung was able to stand up from his wheelchair and walk into the bathroom independently without any standby assistance or escort. He did use his Left hand to touch a stair rail on his way to the bathroom doorway but did not weight-bear through this hand on the rail. While waiting for a taxi later outdoors, Mr Leung was observed standing independently with minimal weight-bearing on the single stick.

Transfers: These were observed to be independent from wheelchair to standing and from standing to get into a taxi without any standby assistance.

Mobility – Walking: Used a single walking stick but not in a consistent manner, sometimes carrying it rather than weight-bearing on it. Used either hand on stick.

Gait: Slow but independent gait on observation, able to lift feet (sometimes low elevation) and clear floor sufficient for safe gait. Able to stand on both feet with even stance and weight-bearing, on observation. Tended to seek light touch support on doorways, rails nearby.

Mobility Aids Used: Single walking stick (hiking-type stick rather than a mobility aid) and folding manual wheelchair.

Use of Transport: Independent getting into a taxi without any standby assistance. … His family did not assist him in transfers (and he did not appear to be waiting for such assistance) apart from opening the taxi door, putting the wheelchair in the trunk of the taxi and a slight touch to get his Left foot/leg into the taxi as the next person climbed in next to him.  He entered the taxi bottom first, seated himself and swung his legs inside.”

23.  I have omitted a statement from the description about the plaintiff having moved from the left rear seat to the middle.  The plaintiff in fact remained in the left rear seat and his wife climbed from the outside over him into the middle seat.

24.  Regarding the video clip of 11 October, the plaintiff was only seen being pushed around in his wheelchair.  There is nothing significant in this clip.

25.  For the video clip of 18 October, he was seen having tea in a Chinese restaurant.  After arranging him at a seat at a table, his wife left him.  He was sharing the table with other customers.  He then read a newspaper.  In the course of reading, he casually held up a round porcelain Chinese teacup (without handle) and drank from it.  The teacup tapered towards the bottom.  He used his thumb on one side and his index and middle fingers on the other to form a cavity to hold the round teacup and supported its bottom with his 4th and little fingers.  This is the usual way to hold a round and tapering Chinese teacup without handle.  After drinking, he put the teacup back to the table without looking.  The whole motion was casual and smooth.  He then lowered his head and ate some food.  But the view of him was blocked by a menu placed in an upright position on the table and it could not be seen how he ate the food.

Joint expert reports

26.  He has been jointly examined by orthopaedic and psychiatric experts and rehabilitation consultants.  The 3 joint reports have been admitted without cross-examination of the experts.  The joint orthopaedic and psychiatric reports were made in December 2010 and were before the first video clip.  The joint rehabilitation evaluation report was made on 13 July 2011.  The 2 rehabilitation consultants had the benefit of considering the 1st video clip but not the 2 later ones.  

Joint orthopaedic report

27.  The joint orthopaedic report was compiled by Dr Lung Ting Kwan, Peter for the plaintiff and Dr Chun Siu Yeung for the 5th defendant and dated 5 December 2010.  They had assessed the plaintiff on 5 November 2010.

28.  The report noted and recited various medical reports on the plaintiff.  One of the reports was by Dr Wong Chun Kong of the O&T Department of QEH dated 27 November 2006 which stated that the plaintiff was admitted to the spinal cord rehabilitation centre of KH on 20 December 2005.  He was then tetraplegia and received intensive physiotherapy and occupational therapy.  He wore halo ring for 5 to 6 months after the accident which was only removed in April 2006.  When he had the ring on, he was unable to move or rotate his body which caused skin problems all over his back.  After about 6 months rehabilitation, he could walk with stick independently with mild limb spasticity and able to self-void.  He was then discharged on 4 July 2006.

29.  The plaintiff however told the expert doctors that he could then move his limbs, but walking was difficult and was limited to a few steps with assistance.  He was also unable to handle even simple daily self-care duties like having meals, brushing teeth and going to toilet which tasks he had to rely on his wife to discharge.

30.  He also complained to the experts of cramps of 4 limbs which were worse at night.  He was unable to move his 4 limbs.  He had neck pain round the clock up to the occiput which was pulling in character.  He had double incontinence and constipation.  He had to put on a napkin because of urinary incontinence and required intermittent urinary catheterisation 3 times a day.  He needed help for cleaning after bowel cleaning.  He could not achieve penile erection.  His body was tight like being wrapped up by paper.  He needed support to stand and was wheelchair bound and could not walk.  He needed transfer to and from wheelchair or commode chair.  He needed help to sit up from bed and to change position in bed.  He could not put on or change clothes and needed help in brushing teeth or shaving.  He could manage chopsticks from time to time but needed help for feeding.  He had headache which could be relieved with analgesic.  He had bad temper and was withdrawn.  He had visual and audio hallucination.

31.  During the assessment by the experts, he could not rise from his wheelchair on his own.  He also could not stand up or try walking because of numbness on the plantar aspect of his feet.

32.  The experts diagnosed that he had suffered first cervical vertebra fracture (Jefferson fracture) with the atlas (C1) bone shattered causing quadriplegia.  The fracture had healed and he had some recovery of sensation and motor power.

33.  Regarding the plaintiff’s improvement as shown in Dr Wong Chun Kong’s report and the subsequent retro-gradation, Dr Lung opined that it was not uncommon for quadriplegics to deteriorate once active aggressive therapy is stopped.  He also opined that when there is partial motor recovery after the initial months, there would be increasing spasticity in muscle tone which would prohibit smooth motion of limbs and mobility to a large extent.  The emotional statue of the plaintiff also affected his performance in the assessment and daily living.  He opined that the plaintiff was suffering from psychiatric symptoms to the extent of hallucination.  However, Dr Lung’s opinion was given without the benefit of seeing the video clips, the joint psychiatric report dated 30 December 2010 and Dr Alex Chow’s observations in the joint rehabilitation consultants’ report which contradicted same of the plaintiff’s allegations of disability.

34.  Dr Chun referred to the clinic notes of the O&T Department of KWH which recorded that the plaintiff could walk with stick independently on 18 July 2006.  However, his walking ability seemed to have deteriorated.  On 20 March 2007, he could do stick walking with clumsiness and was mainly wheelchair bound.  On 18 December 2007, he walked with stick but with marked instability and spastic gait.  He performed in the same way on 5 May 2009.  I however note that the alleged deterioration in walking ability appears to be contradicted by what is shown in the video clips.

35.  Regarding the retro-gradation after mid-2006, Dr Chun took a different view from Dr Lung.  Dr Chun opined that the plaintiff’s improvement achieved after full rehabilitation by mid-2006 was quite satisfactory and should not reverse.  Dr Chun’s view is supported by the plaintiff’s motions as shown in the video clips and also Dr Alex Chow’s observationsreferred to above.

36.  Dr Chun also noted a gradual and slow progression of the degenerative cervical spine, but that was more likely to be related to the lower cervical spinal stenosis rather than the injury on 17 November 2005.

37.  Dr Chun reviewed the clinic notes of the O&T Department of KWH on the plaintiff’s urodynamic function.  He noted that in early 2006, the plaintiff had satisfactory bladder capacity and compliance.  He voided 7 times a day with volume of 300 to 500 ml which was very satisfactory.

38.  The clinic notes further recorded that he had self-voiding on 18 July 2006 and 10 July 2007.  In 2009, the plaintiff had self-voiding and clean intermittent self-catheterisation 4 to 5 times a day with 200 to 300 ml without urinary incontinence.

39.  Regarding sick leave, Dr Chun took the view that sick leave of 2 years, which was up to November 2007 was within reasonable limit.  Dr Lung however regarded the actual sick leave up to 11 October 2011 or some 5 years and 10 months as appropriate.  Judging from the plaintiff’s improvement by mid-2006, I would prefer Dr Chun’s view.

40.  Regarding prognosis, Dr Lung was of the view that the plaintiff had reached maximum medical improvement and his physical problems are static.  He had also not suffered any loss of life expectancy. 

41.  Dr Chun also opined that the plaintiff had reached maximal medical improvement.

42.  The experts did not recommend any operation or further treatment as a result of the injury.

43.  Dr Lung assessed the plaintiff’s impairment of the whole person at 97% whilst Dr Chun assessed it at 56%.  The degree of impairment may reflect the extent of the plaintiff’s disability in managing his daily activities and self-care tasks.  However, regardless of the difference between the experts, I do not think the plaintiff can resume his pre-accident job as an air-conditioning installation and repair technician.

Joint psychiatric report

44.  The joint psychiatric report was prepared by Dr Lee Wing King for the plaintiff and Dr Chung See Yuen for the 5th defendant and dated 30 December 2010.  They had interviewed the plaintiff and his wife on 8 December 2010.

45.  The plaintiff and his wife told the experts that after the injury, the plaintiff had become depressed with reduced interest and pleasure in normal pleasurable activities.  He had insomnia and poor concentration.  His speech was reduced and only talked to his daughter at times.  He became socially withdrawn because of depressed mood and mostly stayed at home.  He became a different person and was no longer optimistic or easy going.  He had auditory and visual hallucinations.  He used to have frequent suicidal ideas though he could not attempt it physically.  He took the prescribed psychiatric medicine which produced some improvement in the problems.  However, he was still depressed for most of the time and had reduced interest in normal pleasurable activities.  He was preoccupied with physical discomforts and limitations in personal and social functioning.  He felt to be a burden of the family and had a guilty feeling towards them.  He also worried about the family finance.

46.  Dr Lee diagnosed the plaintiff as suffering from severe major depressive disorder.  He exhibited symptoms that were compatible with the disorder.  They were depressed mood, reduced interest and pleasure in normally pleasurable activities, reduced energy level and motivation, reduced speech output, social withdrawal, frequent suicidal ideas, poor sleep, poor concentration loss of confidence, negative cognitions of burdening his family with guilt feelings towards them and loss of sexual libido.  His depression affected his personal, social and occupational functioning.  He could not live independently and was totally dependent on others for self-care. 

47.  However, Dr Lee could not definitely categorise the plaintiff’s hallucinations into formal clinically significant auditory or visual hallucination.  The reason being the absence of concomitant commensurate features like significant clarity and intensity and pervasiveness across different time zones of a day and stability over a reasonable period of time to affect the patient’s daily personal and social functioning that result in consequential emotional reactions by the patient. 

48.  The unsatisfactory result of the mini mental state examination (MMSE) also did not signify any clinically significant cognitive impairment of the plaintiff.  There was no supporting subjective symptom of definite progressive memory decline since the accident.  Dr Lee opined that the unsatisfactory MMSE result was more reasonably explained by his poor motivation and concentration caused by depression and physical discomfort during the test.  The depression was also temporary as caused by the injury, physical impairments, financial problems and guilty feeling of burdening the family.

49.  Dr Lee also opined that the plaintiff had received appropriate treatment from Professor Wing of CUHK since 29 April 2009. Dr Lee ascribed the reasons for the modest treatment response as the plaintiff’s persistent physical symptoms, physical impairments and functional disabilities in personal, social and occupational domains as a result of the injury.  Dr Lee assessed his permanent impairment of the whole person due to mental disorder at 15%.

50.  Dr Lee also opined that there is unlikely to be further significant improvement in the depressive disorder which will likely continue for a long time.  Dr Lee recommended long term maintenance psychiatric treatment in the public sector jointly by psychiatrist and clinical psychologist to prevent deterioration and relapse of depressive symptoms and to increase his coping strategies to cope with the chronic, psychological and treatment related stressors.

51.  Dr Chung agreed with Dr Lee that the plaintiff’s complaints are compatible with major depressive disorder and is caused by the accident.  The plaintiff used to have psychological treatment, but it was stopped in May 2006.  He started to undergo psychiatric treatment on 29 April 2009.  Dr Chung referred to the absence of any psychological or psychiatric treatment for the plaintiff from May 2006 to April 2009.  Dr Chung opined that the absence of treatment suggested that the plaintiff’s mental condition should have been stable and not too bad during the period. 

52.  Dr Chung also agreed with Dr Lee that the plaintiff’s major depressive disorder had reached maximum medical improvement and he was suffering from depressive symptoms.  He had undergone appropriate treatment in the public sector and his condition had stabilised.  His depression would also fluctuate in response to stressors.  The risk of significant deterioration of the disorder was however assessed to be low.  He needed maintenance treatment for two more years.  The degree of permanent impairment to the whole person due to psychiatric aspect was also assessed at 15%.

53.  Dr Lee however did not think that the plaintiff’s mental condition was stable from May 2006 to April 2009.  He opined that the disorder was perpetuated by chronic physical, psychological and treatment related stressors which had persisted from after the injury, hence the disorder should have persisted from after the injury.  Dr Lee also referred to the development of depressive features of the plaintiff’s wife in 2007 in support of his opinion.

54.  Dr Lee guessed that the stoppage of psychological treatment in May 2006 could be because of poor motivation and consequent refusal to continue the treatment despite the presence of need. However, Dr Lee did not explain why the plaintiff’s refusal of treatment would have lasted for 3 years if his need was there all the time.

Joint rehabilitation evaluation report

55.  The 3rd joint report is a rehabilitation evaluation report dated 13 July 2011.  It was made by Mrs Shelley Chow, registered occupational therapist and Dr Alex Chow, rehabilitation consultant.  They made the report after interviewing the plaintiff at his home for 3.5 hours on 19 November 2010.  Mrs. Chow had also visited the plaintiff on 5 March 2010.

56.  The plaintiff told the consultants the same physical and psychiatric problems he was suffering from as he did with the other experts.

57.  Apart from his difficulties in moving his limbs and the pains he suffered, he also said that bowel movement was a big problem. It took him 2 to 6 hours for the whole process.  He also reported urinary incontinence and needed intermittent catheterization several times per day and night.  He also wetted his diaper frequently and needed 3 to 4 diapers per day.

58.  His wife also said that he was a good husband previously, but had acquired a different personality.  He felt that he was a burden to the family.  His wife was under a lot of pressure and had anxiety. They had also lost a son in 2008.  The son had achieved a Master Degree in Engineering from an Australian University.  This lost was a big blow to everyone in the family.

59.  The plaintiff also told the consultants that he was still attending the Spine Clinic of KWH, the Neurological and Incontinence Clinic of QEH, the Departments of Psychiatry and Physiotherapy of PWH.  He was also receiving acupuncture treatment twice per week at Hong Kong Chinese University and weekly Hydrotherapy from Caritas Harold Harold Lee Care & Attention Home at Shatin.

60.  In the physical evaluation, the plaintiff’s scores on the power grip dynamometer were at 0 kg for both hands.  The consultants noted that the scores were exceptionally low for a man of the plaintiff’s age, build and occupational background.  They opined that the low results suggested very poor voluntary effort made by the plaintiff during the examination as he was able to use his hand to hold objects, grip the arm-rest of the commode chair and support himself while sitting on his bed during examination.  I also note from the video clip taken on 18 October 2011 that he could flip through a newspaper with both hands and handle casually a round teacup with his right hand.

61.  The consultants also observed that the skin over both soles of the plaintiff was very clean and without any thickening.  They opined that such was atypical for patients who were paralyzed and unable to walk for years as skin would thicken up without walking.

62.  The consultants also observed that on distraction and voluntary movement examination, the plaintiff showed full range of movement of both upper limbs from shoulders to fingers. 

63.  There was also no evidence of any soft tissue, muscle or tendon shortening, significant upper and lower limb joint contractures or sustained clonus (spasm) of both ankles.  Such phenomena would be expected in a patient with poorly controlled spasticity or muscle spasm as reported by the plaintiff.  The absence of these features did not support his claim of severe paralysis of his four limbs, severe uncontrolled muscle spasm and severe joint stiffness.

64.  The plaintiff also said that he could not stand, but the video clip of 1 March 2011 showed that he was able to perform the standing function much better than what he claimed.  I have already reproduced above the description of his performance in the report.

65.  The medical notes of KH recorded an assessment on 4 July 2006 that the plaintiff had modified independence for walking and for stairs (using walking aids only).  He was able to ride a bus with mild difficulties.  Dr Ho Chin Hung of KH also recorded on 4 July 2006 that the plaintiff could walk with stick for long distance. 

66.  A report from Caritas Harold Lee Care and Attention Home stated that the plaintiff was first assessed on 26 July 2006. The therapist in charge noted that he had stiffness of neck and limbs especially in walking.  He walked with stick and with minimal assistance for up to half an hour.  On physical examination, he had grade 3-4/5 power of examined muscle groups of the upper limbs and grade 4/5 power of the examined muscle groups of lower limbs.  After 5 sessions of treatment, he showed decreased stiffness of his joints.  He was allowed to practice exercises in the pool by himself and accompanied by his wife. 

67.  On 10 August 2006, a physiotherapist, Mr Leung of KH recorded that he was able to walk independently for 30 minutes with reduced step length. 

68.  However, he claimed in his witness statement that after discharge from KH on 4 July 2006, he was unable to turn in bed, his wife had to turn him every 3 to 4 hours, to help transfer him to a chair and to return him to bed a few hours after sitting out.  The consultants noted that this claim was inconsistent with the medical records and reports.  He also said he was dependent on others to assist him in transferring from one situation to another.  His wife and a son actually transferred him from the bed to his commode chair and then back to the bed.  The report noted that in transferring him from bed to the chair, his wife and son were unsure of the routine and had to assist him as though they were not familiar with performing this task.  The transfers were by way of lifting without the plaintiff bearing any weight, but were done in a clumsy and awkward way and his wife and son did not appear to know where to stand to assist him and had tripped over equipment.

69.  On personal hygiene, the plaintiff said his wife assisted him to bath twice daily because of incontinence.  He claimed that he used the commode/shower chair as a mobile seat during the day at home and for bathing.  The consultants noted that there was a substantial threshold to the shower cubicle and the commode/shower chair did not fit into the shower area of the bathroom.  There was however no visible minor damage to the doorways or the threshold of the bathroom door.  Such damage could be seen typically when a commode/shower chair was used regularly to gain access and in use.  Hence the consultants considered it likely that he could walk into the shower independently.

70.  He also wrote a signature whilst lying down. His signature in his witness statement dated 31 August 2009 was a much better one suggesting a better control of the right hand and fingers than he claimed.

71.  Regarding the technical aids used, the plaintiff said that he had a manual wheel chair for all outgoings.  The report however noted that there was little sign of wear and tear to the seat pad on the wheelchair between 5 March 2010 when Mrs Shelly Chow made her first visit and the joint visit on 19 November 2010.  The condition of the wheel chair was very good on the date of the joint visit.  The plaintiff in re-examination said that he had replaced the wheelchair many times.  But he did not mention this until his re-examination and produced no receipt to verify this statement.

72.  Dr Alex Chow considered the medical notes and reports from various specialties and professionals and opined that there were gross discrepancies between the symptoms and functional impairments claimed by the plaintiff and those detailed in the medical reports.

73.  A report from KH stated that the plaintiff’s functional independence measure score improved from 30 points on admission to 104 points on 6 July 2006.  The maximum score is 126 points.  But the plaintiff claimed that he was fully dependent on others in all daily living activities since discharge from KH. 

74.  The KH Spine Centre record for 4 July 2006 showed that the plaintiff was fully independent in bladder management without use of catheter.  He was self voiding and only needed suppository and laxative for bowel management.  A nursing assessment record on 18 July 2007 recorded that he was constipated but was independent in bowel and bladder management. 

75.  A urology report dated 31 March 2011 recorded that he was able to self void after a successful trial without catheter with intermittent catheterization as required.  The consultants also checked his diaper on 19 November 2010 after the interview had gone on for 2 hours and 45 minutes.  They found that the diaper was perfectly clean and without any wetting or soiling.  At about 3 hours from the beginning of the interview, the plaintiff was able to empty his bladder voluntarily while lying in bed with the use of a urinal and without a nelaton catheter. 

76.  Dr Alex Chow also opined that if the plaintiff was doubly incontinent, he would have been rejected from the weekly hydrotherapy at the Caritas Harold Lee Care and Attention Home for years.  Dr Chow therefore opined that the plaintiff had good residual function of bladder and bowel despite his claim of double incontinence. 

77.  Dr Chow assessed the plaintiff’s physical deficits as follows.  He had cervical spine stiffness due to C1 vertebra fracture (healed).  He was an incomplete tetraplegia with majority of muscle groups at grade 3/5 power or above.  He had mild weakness of all four limbs (findings limited by poor voluntary efforts by him).  He had partial sensory impairment of all four limbs (findings affected by his co-operation).  He also had mild spasticity of all 4 limbs which was well controlled by medicine with no significant soft tissue shortening and joint contracture.  He suffered from neurogenic bowel with constipation that required laxatives and suppositories but without significant stool incontinence and not restricted his participation in hydrotherapy.  He claimed erectile dysfunction but was not keen for medical therapy.  He was partially dependent in eating, grooming, bathing, dressing and toileting because of the neurological injury.  However, he has modified independence for transfer and locomotion with the use of walking stick and did not require round the clock personal care. 

78.  Dr Alex Chow expected that he would not be able to return to his job of air-conditioner installation technician.  Mrs Shelly Chow did not disagree with Dr Chow, but added that he had additional associated socio-emotional problems which might include reduced self-image, loss of self-esteem, boredom, mood changes, changed life role and frustration.

79.  Regarding accommodation, the plaintiff’s family lives in a public housing flat of approximately 350 sq ft (32.52 sq meters) usable area.  The flat was purchased by the plaintiff in 2003.  It had 2 bedrooms.  One was a master bedroom for the plaintiff’s wife and the other for the 2 sons who slept on bunk beds.  The third bedroom was made for the daughter by enclosing the balcony.  The master bedroom had a double bed.  But the room did not have adequate space for the plaintiff’s wheelchair and other things he needed.  He told the consultants that he slept in a bed placed in the living/dining room.  The bed was a standard narrow bed.  The consultants observed that he barely fitted lengthwise into it.

80.  On the basis of the valuation and the condition of the commode/shower chair, the bathroom and the lack of any minor damage to the doorways and walls, Mrs Shelly Chow opined that the plaintiff was most likely able to mobilise independently into his bathroom.  She made some suggestions for the plaintiff to cope with his residual physical deficits. 

81.  She suggested that there should also be a bedroom allowing privacy and space for the items he required (like his walking stick and laxatives).  There should also be adequate mobility space within the bathroom for safe access and use.  Mrs Chow in particular suggested the removal of the 7 cm high shower recess threshold in the bathroom and the enlargement of the shower stall to accommodate a shower seat with hand-held shower, curtain rail, ramping of floor and the installation of an accessible toilet. 

82.  Mrs Chow further suggested that the plaintiff’s flat should have 4 bedrooms so that a live-in domestic helper could be engaged and accommodated.  There should also be a second bathroom en-suite with the master bedroom.  The other rooms and utility areas should also be enlarged so that the total accommodation area would be at 651 sq ft (60.5 sq meters) or 301 sq ft larger than the existing flat.  Alternatively, Mrs Chow suggested that if the plaintiff’s condition should remain stable and he should maintain his ability to mobilise, then his current home could be modified to accommodate his needs by removing the high shower threshold, enlarging the available space in the bathroom, installing grab rails at the shower recess wall, next to the toilet and inside the bathroom.  There should also be a grab rail next to his bed to aid his mobility in turning and sitting up etc.

83.  Mrs Chow also suggested that there should be more than one lift to provide direct access to the plaintiff’s floor.  There should be adequate mobility space for the plaintiff to walk indoors safely with or without a walking stick.  She further suggested that there should be accessible public areas which should include lobbies and garden areas, pick up and drop off zone for public transport, taxi and van to serve those with mobility restrictions, and accessible commercial centre and public facilities.

84.  Dr Alex Chow referred to a previous visit to the plaintiff’s home by a physiotherapist and an occupational therapist from KH on 22 March 2006.  Those experts in their report did not support rehousing of the plaintiff’s family as they regarded the living area not too tight to the extent that the plaintiff could not manage the basic living tasks.  They also took the view that the plaintiff’s functional level was improving and that limitation in mobility and transfer could be easier to manage at a later date.  The experts however suggested some modifications to the flat which were accepted and implemented by the plaintiff’s family.

85.  Dr Chow also referred to the plaintiff’s further improvement in transfer and walking with a stick since March 2006 as shown in the reports and records of KH and the video clips.  He thus concluded that the plaintiff’s housing needs should be very similar to that as assessed in the report dated 26 March 2006.  He also agreed with Mrs Shelly Chow that the 7 cm high shower threshold should be removed and grab rails should be installed in the bathroom and next to the plaintiff’s bed.

86.  The consultants also assessed the plaintiff’s needs for technical aids and adaptive equipment.  They agreed that the plaintiff required a walking stick, a wheel chair for mobility over distances with safety belt or buckle.  They also agreed that the plaintiff should have a commode chair with seat cushion for safer showering and more independence in bathing.  They also agreed that the plaintiff should be provided with wall bars for training of standing tolerance and standing weight bearing.

Findings

87.  I agree with Dr Chow’s assessment of the plaintiff’s physical deficits as set out in paragraph 77 above which is well supported by contemporaneous medical notes and reports.  I also find that the plaintiff is not suffering from double incontinence and does not require diapers.  I find that he has full range of movement of both upper limbs from shoulders to fingers as observed by Mrs Chow and Dr Chow in the interview.  I also find that he had been doing a lot more walking at home than what he alleged because of his clean soles which did not have thickening, his ability to walk as shown in the video clip and the observations in the medical reports made in the latter half of 2006.  He could also transfer himself from wheelchair to standing and vice versa without help by others as shown in the video clip.  The demonstration of transfer by his wife and a son in front of Mrs Chow and Dr Chow was also unconvincing.

88.  I also hold that he could walk into the bedroom which he shared with his wife and did not sleep in the standard narrow bed in the living room which he barely fitted into it lengthwise.  I would therefore agree to the installation of grab rail somewhere in his bedroom to aid his mobility in turning and sitting up but not next to the narrow bed in the living room.

89.  I also hold that he had been walking independently into the shower for his bath though I agree that the shower should be enlarged as much as possible, so that it can accommodate his commode/shower chair and he can bath with greater safety and pleasure.  Grab rails should also be installed therein if there should be space for it and the commode/shower chair. 

90.  I also find that he is not suffering from clinically significant hallucination.

PSLA

91.  The 2nd Revised Statement of Damages pleaded HK$1,500,000 for PSLA.  The plaintiff’s counsel increased it to HK$2,000,000 in the written opening.  Counsel referred me to Lee Suk Yin & Ors v National Insurance Co Ltd representing the estate of Ngai Chung Lit, deceased, HCPI 439/2000 per Suffiad J dated 28 September 2001 and Cham Cheung Sing v Yung Pak Wa & Ors, HCPI 206/2003 per Poon J dated 20 June 2007 and submitted that this award for the plaintiff should be at HK$2,000,000.  Counsel for the 5th defendant referred me to Lai Ping Wah v China Insurance Co Ltd, HCPI 874/1997 per Seagroatt J dated 25 November 1999 and Fung Kwok Ki v Wing Sang Construction Co Ltd, HCPI 757/2002 per Suffiad J dated 1 August 2003 and submitted a figure of HK$800,000.

92.  Lee Suk Yin is a case of assessment of damages for the 3rd plaintiff, Mr Lee.  He was a passenger in a vehicle and was injured by the negligent driving of the driver. He suffered burst fracture of the C6 vertebra, severe head injuries involving loss of consciousness, subdural haematoma and disorientation and pulmonary contusion.  He was admitted to the ICU.  The fracture was immobilised with a halo ring and jacket.  The subdural haematoma and lung contusion were treated conservatively.  He remained in the ICU for 1½ months and was then transferred to the general orthopaedic ward.  He was given physiotherapy, occupational therapy, training in bladder care and psychological counselling. He was hospitalised for 22 months. 

93.  After discharge from hospital, he had regular follow ups at various hospitals.  He suffered from complete spastic paralysis in his lower limbs with recurrent painful spasms including clonus at the patella and ankle.  His lower limbs also had grossly diminished sensation and muscle wasting.  He also suffered from complete paralysis of the trunk with grossly diminished sensation and marked muscle wasting.  He had large pressure sores in the sacral region when hospitalised.  He also suffered from increased convexity in the curvature and lateral curving of the spine or what is called left dorso-lumber kyphoscoliosis.  He also had recurrent cramps in the lumber region and left abdomen and persistent low back pain increasing with cramp. 

94.  For his upper limbs, he had incomplete paralysis.  His shoulders retained grade 4 power and had vibration sensations reduced.  He had persistent pain along the scapular regions and muscle wasting on his chest.  His elbows also had muscle wasting.  His hands and fingers had no useful function and sensation of fingers was grossly diminished with marked muscle wasting.  His whole upper limb area also had abnormally exaggerated response to painful stimuli.  His neck suffered from limited range of motion on all sides with persistent pain and stiffness.  He had occasional parietal headache.

95.  Urologically, he had bladder dysfunction with poor bladder sensation, urinary incontinence and incomplete voiding.  He also suffered from spastic obstructive sphincter causing reflux of urine from the bladder to the kidneys leading to development of reflux hydronephrosis of the kidneys.  He also had bowel dysfunction with partial bowel sensation and very occasional incontinence.  He had also become sexually impotent and had total loss of sensation over the genitalia.

96.  Cosmetically, he had some scars in different parts of his body and limbs.  He was wheelchair bound for life and was an incomplete tetraplegic.  Psychologically, his confinement to a wheelchair made him feel frustrated.  Suffiad J classified him in the “disaster” category in Lee Ting Lam and awarded him HK$1,800,000 for PSLA on 28 September 2001.

97.  In Cham Cheung Sing, the plaintiff was a customer of a restaurant.  He slipped and fell from the top of a staircase which led to a cockloft.  He tumbled down to the bottom of the staircase at the G/F. He suffered serious head and spinal injury.  He was unconscious after the fall. He was lifted up and dragged to the back alley of the restaurant to wait for an ambulance without his neck having been supported or immobilised first.  This aggravated his spinal injury.  He regained full conscious about 7 hours after the accident.

98.  He was hospitalised from 1 April 2001 to 25 May 2001 and was transferred to a rehabilitation centre.  He was transferred back to the hospital on 30 July 2001 for surgical repair of the sacral pressure sore.  He was discharged from hospital on 18 October 2001.  He was rendered a tetraplegic.  He had no effective movement.  His impairment of the whole person was assessed by the experts at 97% to 98%.  He was suffering from complete paralysis and was wheelchair bound and bed bound.  He could not move his limbs.  He had sensory disturbance of upper limbs and of below the upper thorax with impaired temperature sensation, numbness and hyperaesthesia.  He had pain after sitting for 15 minutes, sacral pressure sores, double incontinence, sexual impotence, psychiatric disturbance, depression and adjustment order.  He was totally dependent in his activities of daily living.  Poon J placed him in the “disaster” category and awarded him HK$2,000,000 for PSLA on 20 June 2007.

99.  In Lai Ping Wah, the deceased was a passenger in a coach.  She was thrown out of the coach onto the road in a collision between the coach and 2 railway units on 18 September 1984.  She suffered head injury with laceration, loss of consciousness for an uncertain period, right lower chest pain, back pain with tenderness at T6 to T8 region and neck pain.  She also had a laceration at her left leg recorded as 7 cm to 8 cm deep to muscle.  She was discharged from hospital some 6 weeks after the accident.  She had at least 4 sessions of removal of glass beads under local anaesthetics.  She walked with a stick after discharge.  She developed Devic’s Syndrome or multiple sclerosis which Seagroatt J accepted as being the result of her injuries and medical treatment collectively or individually.  She lost the sight of her left eye in April 1995 and became totally blind in March 1996.  There was progressive weakness in her legs.  She had to use a frame to walk.

100.  On 14 May 1996, she was diagnosed of transverse myelitis (inflammatory disease of the spinal cord).  She then complained of intermittent pain over the right parietal region with numbness and paraesthesiae over the right upper face and occasional tinnitus.  The power of her lower limbs was reduced and she was wheelchair bound.  Further deterioration made her a tetraplegia.  She was admitted to hospital on 7 March 1998 for chest inflection and passed away 10 days later or some 3½ years after the accident.  Seagroatt J awarded her HK$1,000,000 for PSLA on 25 November 1999.

101.  In Fung Kwok Ki, the plaintiff was hit by a box of tiles at a construction site and suffered severe injuries to his head, neck and front chest wall.  Physical examination at the hospital showed tetraplegia with signs of complete spinal cord injury.  He had to be resuscitated, intubated and given intravenous infusion with neck collar and spinal board.  He was diagnosed to suffer from paralysis and fracture of left femur.  He was in the ICU for 20 days and had several surgeries.  He was hospitalized for nearly 1 year and 10 months.  He had partial recovery and was left with permanent residual brain damage in the form of impaired higher mental functions including dysarthria, dysphagia and mild upper limb dysfunction.  He did not recover from the paraplegia.  He had permanent double incontinence.  His neuropathic impotence was also permanent.  He was also permanently wheelchair bound.  The combined percentage of permanent impairment of the whole person was assessed at 92%. 

102.  Suffiad J classified him at the lower end of the “disaster” category and awarded him HK$1,500,000 for PSLA on 1 August 2003.

103.  These four cases are more serious than the plaintiff herein.  I have reviewed the cases of spine injury in Hong Kong Personal Injury Service, but cannot find any case that is more analogues. Considering all the facts including the injuries, the treatment he received, the period of hospitalisation, the residual physical and mental deficits and suffering, I give him HK$1,000,000 as the compensation for PSLA.

Pre-trial loss of earnings and MPF

104.  There is no dispute that the plaintiff should be compensated with loss of earnings at HK$20,800 per month for the pre-trial period.  The amount for this loss together with MPF at 5% is at:

HK$20,800 x 1.05 x 7 x 12 = HK$1,834,560.

Costs of pre-trial care by the wife

105.  The plaintiff’s wife has been looking after the plaintiff since the accident.  She abandoned her business Kwok Po Engineering Company.  However, as counsel for the 5th defendant has pointed out, there is no evidence of the income of the wife from the business.  Counsel for the plaintiff submitted in the opening and closing submissions that the plaintiff’s wife had been providing the plaintiff with the combined service of a full-time private nurse and a domestic helper.  Counsel therefore claimed HK$12,000 per month for the wife’s pre-trial care.

106.  Counsel for the 5th defendant however suggested HK$2,000 per month for the 7.5 months of hospitalisation and $4,000 per month for the rest of the pre-trial period.

107.  Since the plaintiff was able to walk with stick independently for long distance and for up to half an hour in July 2006, I do not think it was necessarily for his wife to devote all her time to take care of him.  The video clip of 18 October 2011 also showed that the wife, after arranging him to be seated at a table in the restaurant, had gone elsewhere to attend to other tasks.  The plaintiff just sit there to read his newspaper and had his tea and dim sum by himself.  I would however accept that the wife would also provide some personal service like messaging and other personal services that cannot be expected of a domestic helper.  I would therefore award HK$3,000 for her care for the 7.5 months of hospitalisation and HK$4,500 for the rest of the pre-trial period.

108.  The sum payable under this heading is:

    [HK$3,000 x 7.5 = $22,500] + [HK$4,500 x (7 x 12 -7.5) = HK$344,250] = HK$366,750.

Pre-trial medical and hospital expenses

109.  The plaintiff claims HK$50,000 for this item and the 5th defendant does not dispute it.  I so order.

Pre-trial tonic food (consumed)

110.  The plaintiff claims HK$245,130 for tonic food including Korean ginseng at HK$49,125 and other medical herbs at HK$163,750. Many of the tonic foods allegedly consumed were high price items and receipts were not provided for most of them.  His counsel reduced this claim to HK$120,000 in his opening.  Counsel for the 5th defendant further pointed out that the plaintiff only claimed HK$30,000 for this item in his witness statement dated 31 August 2009 and it was most unusual for him to have consumed another HK$200,000 of tonic food since then.  Taking all matters on board, I award HK$30,000 for this item.

Pre-trial travelling expenses

111.  The plaintiff claims a lump sum of HK$75,000 for travelling expenses incurred by his family to visit him at the hospitals and for his travelling expenses to hospitals and rehabilitation institutions after discharge.  The 5th defendant counter-offered HK$20,000.

112.  I would give HK$100 per day for the wife and children to take public transport to visit him for the period when he was hospitalised.  I assume that the wife had gone there twice a day and the children once a day.  For the rest of the pre-trial period after discharge, I would allow HK$500 per month taxi fare for his visits to the hospitals, rehabilitation institutions and the weekly hydrotherapy.  I would therefore award him:

[HK$100 x 229 = $22,900] + [HK$500 x (7 x 12 - 7.5) = HK$38,250] = HK$61,150.

Pre-trial technical aids and assistive devices

113.  The sum claimed at HK$14,085 is undisputed and I so order.

Pre-trial consumables used

114.  The plaintiff claims HK$190,000 for this item, but provided few receipts.  There is no receipt for HK$55,977 worth of diapers used.  The wife said in cross-examination that the printing on the receipts had faded.  This is unconvincing as nothing is produced.  I also refer to my finding that the plaintiff is not suffering from double incontinence.  The 5th defendant accepts that he should have used diapers when hospitalised and is prepared to pay HK$10,000 for that.  I accept this and so order.

115.  The next consumable is catheter.  The plaintiff claims that he had used 3 pieces a day for the pre-trial period which cost HK$10,965.  I again refer to my finding of no double incontinence and accept the 5th defendant’s suggestion of HK$1,000 for this item.

116.  The plaintiff then claims HK$48 per month for lubricating jelly for the out of hospital pre-trial period.  This is surely excessive.  The 5th defendant suggests HK$100, but I think that is too low.  I would allow the average costs of this item for occasional bowel management at HK$10 per month and I award a sum of HK$800 for it.

117.  The next item is for moist cleaning paper tissues which the plaintiff claims to require 1 pack at HK$25 for every 3 days.  The total claim is HK$18,858 for the pre-trial period.  The 5th defendant is only prepared to pay 10% of the amount claimed to cover the period of hospitalisation.  In the light of my finding of no double incontinence, I would allow HK$2,000 for this item.

118.  The next claim is HK$25,318 for heat packs.  The 5th defendant is prepared to pay HK$10,000 for want of any reason for the need of so many heat packs.  I agree.

119.  For the other items of consumables totalling HK$75,675, they are undisputed and I order as claimed.  The total sum allowed under this heading is rounded up to HK$100,000.

Pre-trial house modification

120.  This claim is for HK$50,000 and is accepted.  I so order.

Future loss of earnings and MPF

121.  The plaintiff was born on 3 April 1958.  He is 54 years old.  Counsel for the 5th defendant suggested a multiplier of 5.  I would however adopt a multiplier of 7.  The reason is the plaintiff’s good health as reflected by his good recovery from the injury.  But for the accident, I think he should be able to work up to his early sixties (see table of multipliers at para. 1755 of Hong Kong Personal Injury Service).  The award for future loss of earnings and MPF is:

    HK$20,800 x 1.05 x 7 x 12 = HK$1,834,560.

122.  The plaintiff’s counsel adopted a different approach for loss of earnings.  He applied a multiplier of 10 for the pre-trial loss, future loss and MPF.

Multiplier for future expenses

123.  Counsel for the plaintiff adopted different multipliers for different post-trial and future expenses.  Counsel for the 5th defendant suggested a multiplier of 10 for all these items.  Since the plaintiff’s life expectancy has not been affected by the injury, I would adopt a multiplier of 13 on the basis that he will live up to his seventies.

Future medical expenses

124.  The plaintiff claims HK$266,700 for these expenses.  Three items are agreed.  They are (i) suggested future follow-ups, physiotherapy and occupational therapy in public hospital, (ii) annual health checks and (iii) continuation of hydro-therapy.  The amounts required are undisputed. However, the 62 visits per year for the first item are mainly for physiotherapy and occupational therapy and Mrs Chow only recommended them for 2 years post-trial at gradually reducing frequencies.  Beyond that, such therapy would depend on the need.  I would therefore allow a multiplier of 3 for the first item.  For the annual checks and the hydrotherapy, I would allow the remaining of the multiplier at 10.  The annual sum for the 3 items is HK$9,100 and the annual sum for the annual checks and hydrotherapy is HK$2,900.  The sum payable is:

HK$9,100 x 3 + HK$2,900 x 10 = HK$56,300.

The last item is HK$112,000 for clinical psychological counselling. Counsel for the 5th defendant submitted that there is no basis for it and I agree.  The award under this heading is at HK$56,300.

Future tonic food

125.  The plaintiff claims HK$3,000 per month for this item.  The 5th defendant suggests a nominal sum of HK$20,000.  The plaintiff’s recovery has reached the maximum stage.  I would accept the suggestion of the 5th defendant and award HK$20,000 for this item.

Future travelling expenses

126.  The plaintiff claims the costs and expenses of a private car at HK$1,409,300 or HK$400 per month for rehabus with a multiplier of 17 at a total of HK$81,600.

127.  The plaintiff’s counsel in his opening claimed $100 per month as taxi fare for follow-ups with a multiplier of 8.  In addition, he claims HK$500 per week taxi fare for out-door activities with a multiplier of 21 giving a sum of HK$546,000.  The multiplier was reduced to 13 and the total sum to HK$390,000 in the closing submissions. 

128.  Since the 5th defendant does not dispute the plaintiff’s need for future medical follow-ups and therapies, annual checks and hydrotherapy, the plaintiff should be given the taxi fare for these purposes. 

129.  The plaintiff has become a withdrawn person and there is no evidence that he would like to have frequent outings save to have tea and dim sum in nearby restaurants.  I would not entertain the claim for travelling expenses for outings.  I would therefore award him HK$100 per trip and give him 120 trips per year for a multiplier of 3 and 60 trips per year for the rest.  The award for this item is at:

HK$100 x 120 x 3 + HK$100 x 60 x 10 = HK$96,000.

Future technical aids and devices

130.  The 5th defendant accepted some of these items at a total annual value of HK$4,124.  I adopt a multiplier of 13 and award HK$53,612 for these items.

131.  The disputed items in this claim are a triple crank electric hospital bed and mattress, mattress pad, waterproof mattress cover and assorted plastic bowls and dishes.  These were recommended by Mrs Chow but disagreed by Dr Chow.  Dr Chow’s grounds are that the plaintiff has good mobility and transfer function and without double incontinence.  I agree with Dr Chow and do not allow these items.

Future consumables

132.  The plaintiff claims HK$828,090 under this heading.  The defendant only agreed to HK$27,149.

133.  The items objected to are mainly for use in connection with the alleged double incontinence and the need to have catheterisation.  The claim for diapers for the alleged double incontinence is at HK$503,880.  Since I have found against double incontinence and the need for catheterisation, I uphold the 5th defendant’s objections.  I award HK$35,000 for this claim as the multiplier I choose is 13 and is larger than the multiplier of 10 suggested by the 5th defendant.

Alternative accommodation, relocation and modification costs and recurrent extra household expenses

134.  The plaintiff claims HK$4,284,000 for renting alternative accommodation, HK$200,000 for relocation and modification of the new premises and HK$78,830 for extra recurrent expenses in the new premises. 

135.  Mrs Chow in her own first assessment report suggested alternative and larger accommodation.  However, she modified her opinion in the joint report she made with Dr Chow.  She said in the joint report that if the plaintiff’s condition should remain stable, then his current home, while small and far from ideal, could be modified to accommodate his needs.  I have already referred to the suggested modifications some of which had been agreed to by Dr Chow.  Dr Chow referred to the opinions of a physiotherapist and an occupational therapist given in March 2006 after a site visit.  The expert’s opined that rehousing was not supported.  Dr Chow was of the same opinion.  In view of the plaintiff’s mobility, transfer function and the fact that he can walk into and share the bedroom with his wife, I agree with Dr Chow that there is no need for alternative accommodation.  This claim therefore fails.

Loss of society

136.  The 2nd revised statement of damages asked for HK$40,000 but counsel’s opening increased it to HK$100,000 and tried to justify the increase simply by reference to the maximum of HK$150,000 in the Fatal Accidents Ordinance.  The 5th defendant accepts the HK$40,000 claim.  I would however award HK$60,000 for this claim.

Future costs for family care

137.  In view of the plaintiff’s modified independence for transfer and locomotion, round-the-clock personal care is not necessary.  I have already discussed such need in the claim for pre-trial costs of such care.  I would also award HK$4,500 per month with a multiplier of 13 or a total sum of HK$702,000.

Costs for outdoor and recreational activities

138.  Counsel for the plaintiff submitted that the plaintiff should not be confined to home and should undertake regular outdoor activities and have social interaction with others.  Counsel further suggested that an annual sum of HK$10,000 with a multiplier of 15 be given for holiday and recreational activities for severely handicapped people.

139.  Counsel for the 5th defendant said this claim was based on Mrs Chow’s recommendation which Dr Chow did not consider as medically necessary.  Counsel further pointed out that the plaintiff did not appear to be interested in such activities.  I have already disallowed the claim for transport costs for outings.  I however think that there should be a small allowance for the plaintiff to take part in holiday and recreational activities and hopefully to further enliven his mind and reduce his suffering brought about by the accident.  I allow him HK$50,000 under this heading.

140.  The total sum adjudged herein less the employees’ compensation payment at HK$2,408,216 is summarised below:

Pain, suffering & loss of amenity	HK$1,000,000
Pre-trial loss of earning plus MPF	HK$1,834,560
Future loss of earnings plus MPF	HK$1,834,560
Pre-trial hospital & medical expenses	HK$50,000
Future hospital & medical expense	HK$56,300
Tonic food consumed	HK$30,000
Future tonic food	HK$20,000
Pre-trial travelling expenses	HK$61,150
Future travelling expenses	HK$96,000
Pre-trial house modification	HK$50,000
Pre-trial costs of family care service	HK$366,750
Future costs of family care service	HK$702,000
Loss of society	HK$60,000
Pre-trial consumables	HK$100,000
Future consumables	HK$35,000
Pre-trial technical aids and devices	HK$14,085
Future technical aids and devices	HK$53,612
Future holiday & recreational activities	HK$50,000
Credit to EC payment	HK$2,408,216
	HK$4,005,801

141.  I order interest at 2% per annum for the general damages of PSLA from the date of writ to today.  I also order interest for the pre-trial loss of earnings plus MPF thereon and other special damages at half the judgment rate from the date of accident to today.

142.  Regarding costs, I make a costs order nisi that the 1st and 4th defendants do pay the plaintiff the costs of this action including the assessment of damages.

143.  I however make a further costs order nisi that there be no order as to costs as between the plaintiff and the 5th defendant.  The 5th defendant joined this action to assist the court as the 1st and 4th defendants have not taken any part to contest the claim.  The 5th defendant is a statutory body and did not join to further its own interest or to suppress the plaintiff’s claim but to assist the court to come to a fair and just decision.  The 5th defendant’s intervention has indeed been useful and constructive both in terms of evidence and submissions.