BUAPHAN WANLAYAPHOL AND ANOTHER v. THE INCORPORATED OWNERS of the FOREMOST BUILDING

HCPI No. 336 of 1998

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 366 OF 1998

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Assessment of Damages

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Introduction

1. What had joyously begun as a trip to celebrate her daughter's, Pilaimart Ho's wedding in Hong Kong on 27 March 1996 ended in tragedy for Buaphan Wanlayaphol (the deceased) on 1 April 1996. The deceased, aged 44, who had flown in with her Swedish husband, the 2nd plaintiff, was strolling down Jordan Road on 1st April 1996 with her husband when they were struck by falling concrete and steel of substantial weight that had fallen from defendant's building. The deceased was knocked unconscious, sustaining severe head injuries whilst her husband was momentarily dazed and bleeding from the head. When the husband regained his wits, he immediately proceeded to try and revive her, realising that she had been most seriously hurt. The deceased eventually died on 12 January 1999 from her injuries. Pursuant to her Will dated 22 November 1995, her estate was bequeathed to her children Pilaimart Ho and Neng Wanlayaphol who were given leave to continue these proceedings on behalf of her estate.

2. Judgment on liability was entered against the defendant on 8 March 2001 with damages to be assessed.

The claim of the 1st Plaintiff

3. From the brief memo of Dr. Lin Wai-hung of the Queen Elizabeth Hospital, it was apparent that the deceased was comatose on admission (Glasgow coma scale 3/15) with a 13 cm laceration on the right scalp. Urgent CT brain scan was conducted, revealing a right acute subdural haematoma and high parietal depressed skull fracture. Emergency brain surgery and elective tracheostomy followed. The deceased regained semi-consciousness post-operatively but her condition was complicated by chest infection that was managed by antibiotics. She remained semi-conscious, stable and was running a low grade fever.

4. The deceased was returned to Sweden and eventually admitted to Visby Hospital on 18 May 1996 with multi-resistant staphylococcus aureus infection. She was kept in isolation in consequence. On 6 August 1996, she was transferred to the Gotlands Kommun Medical Rehabilitation Clinic at Visby Hospital. The relevant medical report disclosed that she was then conscious, incontinent and lacking voluntary muscle function. She was unable to speak, eat or drink and had to be fed artificially. She exhibited increased muscle tone in the extremities, but decreased muscle tone in the trunk, clonus in the wrists and short adductors and flexors at the hip.

5. Five weeks of rehabilitation ensued, producing little improvement in her condition. Aside from an ability to sit upright for five minutes and move her left hand for about 10 cm, her other functions remained unchanged. Dr. Lars-Olof Andersson, the senior physician at Visby rendered a very grim prognosis. He was satisfied that the deceased's extensive brain damage would cause severe disability requiring years of rehabilitation. A probability of the deceased becoming help dependent and bound to the wheelchair for life without being able to communicate, presented itself. Sadly, that turned out to be the case.

6. Seven months of physiotherapy and occupational therapy brought little change. The deceased was still unable to communicate so her cognitive disability was unmeasurable. Voluntary movements were restricted to sideways movement of the head 300 in either direction and 15 cm for the right arm. She required constant medical attention, remained incontinent and still had to be fed. Her loss of earning capacity was put at 100% and loss of motor function at 95%. She was expected to be wheelchair bound for the rest of her life.

7. The deceased was discharged on 1 January 1997 from the rehabilitation clinic home to a new apartment and into the care of her husband. She was examined by Dr. Monica von Heijne, a specialist in Rehabilitation Medicine on 18 June 1998, by Dr. Angelow bengt-Ake, a clinical psychologist, and by Gunnel Hallbom, an occupational therapist with expertise in neuro-rehabilitation in June 1998. The cumulative effect of their findings offered little hope of any significant improvement in the deceased's severe disability.

8. She remained gravely retarded, had no eye contact and 'yes' and 'no' were expressed non-verbally, which her husband and his assistants could understand. According to the husband, she managed to say a few words in Thai, her native language. Although she was fully conversant in Swedish, she never spoke that language again because of her serious impairment. She was never happy, often angry and had been seen to cry on a number of occasions. She had little voluntary muscle control, but seemed able to show her displeasure by moving her right arm at the shoulder. There was little meaningful control of her legs even though there was a degree of flexion in them. She could sit in a wheelchair and move her body forward. There was considerable spasticity in both the upper and lower extremities, and flexion contractures especially in the right arm at the shoulder and elbow and in both legs. General hypertonus and rigidity in the muscles, and difficulty in activating reflexes were noted. Her right side was Babinski positive and equivocal on the left. She continued to have no voluntary bladder or bowel control and was wholly dependent upon others for her all her daily needs. The level of dementia was assessed at 99%, 100% being dead.

9. She was essentially bed-ridden, marginally cognitive, but could feel pain and discomfort and was robbed of all dignity. Over time, despite continuing medical care and attention, she became increasingly susceptible to opportunistic infections, eventually succumbing to suppurative bronchitis on 12 January 1999.

Pain, suffering and loss of amenities

10. This head of damage was agreed at $1 million.

11. There could be no controversy that the deceased had experienced much pain, discomfort and considerable loss of amenities even though she might well not have fully appreciated the extent of that deprivation in the years before her death. The evidence disclosed that she had to endure being constantly moved from bed to wheelchair and vice versa and during physiotherapy. The frequent medical examinations clearly made her irritable on occasions and she would express her annoyance by moving her good arm about. It would not be unfair to observe that the only consolation and pleasure she ever had in all that time was a short trip back to Thailand in 1998 to be with her family and friends. $1 million is entirely just and proper and will accordingly be awarded as she fell squarely within the 'disaster category' described in Lee Ting-lam v Leung Kam-ming [1980] HKLR 657 as adjusted in line with current awards.

Loss of accrued earnings of the deceased

12. The deceased became acquainted with her husband in 1994 and they were married in October of the following year, making Visby, an island in Sweden their home. Visby is a tourist destination with a population of about 24,000 inhabitants, swelling to some 600,000 people at the height of summer. It is a port of call for some cruise liners.

13. With no children from the marriage and two grown-up independent children from a prior union, the deceased was able to work as a cleaner. Between 1990 and 1994, she earned between SEK84,684 and SEK104,463 p.a. Being frugal and hardworking, she managed to accumulate a modest amount of savings that she invested in a hotdog vending business in October 1995. The hotdog stand was operated near the Visby Town Centre, in a carpark. The business had barely started when the deceased met with the accident in Hong Kong. Following the accident, the stand was vandalised and almost destroyed. The stand and equipment were eventually sold at a loss.

14. From the deceased's 1995 tax return, it is apparent that her income as a cleaner for the twelve months of that year ended December 1995 was SEK96,556 of which SEK76,300 was taxable. There was no business income for the period. Her 1996 tax certificate showed active business income of SEK41,808 and earned income of SEK31,880. The stated total taxable income amounted to SEK73,600. The business revenue generated by the hotdog stand in the 2½ months of its operation prior to the accident was modest. It was afterall the winter of 1995/1996 when tourists would have been thin on the ground and the business was new and relatively unknown. The deceased and her husband were clearly looking forward to increased custom in the coming months.

15. It was the plaintiffs' case that the deceased's potential earnings from the new business and from cleaning work should be calculated by reference to the tax document for 1996. The defence submitted that such income would not have been representative of her earning potential as her past tax certificates showed decreasing income from cleaning over the years. That may well be true, but any computation based upon the 1996 income figures would necessarily be conservative in any event as no adjustment would be made for the very real prospect of business income being enhanced by heavier tourist traffic over the summer months. It is equally true that as the hotdog business took off, the deceased would have had correspondingly less time and energy to carry on cleaning. She was afterall managing the hotdog stand on her own. I therefore agree with senior counsel submissions for the plaintiffs.

16. Her cleaning job brought in SEK31,880 at the beginning of that year or SEK12,752 p.m. In the 2½ months of the business, she had earned SEK41,808 or SEK16,723.20 p.m. Had the accident not occurred, she could have expected to earn about SEK29,475.20 p.m. (SEK12,752 + SEK16,723.20) from both sources of income. Over a period of a year, her pre-tax income would have been SEK353,702.40 (SEK29,475.20 x 12). That we understand was 34%.

17. Her earning potential from 1 April 1996 and ending with the date of death would therefore have been SEK29,475.20 p.m. less 34% tax x 33 months = SEK641,969.85.

18. The husband's evidence, corroborated by the certificate from Gotland Provincial Social Insurance Agency of Sweden, confirmed that the deceased had benefited from sick leave pay between 1996 and 1998, totalling SEK180,986 and the amount of tax taken off. She was also entitled to and did receive a disability pension from the state of SEK78,000 p.a. When she died in January 1999, she had been paid SEK61,064 in disability benefits. Sick leave and disability payments were subject to taxation at the rate of 34%. Such payments would have to be deducted to arrive at the net earning potential of the deceased. Net of tax, total benefits received amounted to SEK163,930 from the figures supplied by Mr. Barretto SC for the plaintiffs, which I wholly accept as being correctly calculated. Her accrued loss of earnings from accident to death is calculated thus:

19. SEK641,969.85 - SEK163,930 = SEK478,039.85 or HK$337,974.17 at the rate of SEK100 to HK$70.70 as stated in the Revised Statement of Damages.

Loss of accumulation of wealth

20. On the authorities, such a claim is incompetent unless there is some evidence from which it can be inferred a probability of future savings or pointing to a discernible pattern of savings: Kwan Lai Kuen v National Insurance Co Ltd [1998] 1 HKC 98. In the instant case, evidence of this nature was indeed available.

21. The deceased, at all times gainfully employed and enjoying good health, had accumulated savings prior to the accident, albeit not substantial, from which she drew a significant portion to finance the hotdog venture. This she was able to accomplish in spite of having had to support and rear two children. But for the accident and her untimely demise, she would have continued to earn income from that business and perhaps to a lesser extent from her cleaning work. With a demonstrated pattern of industry, past savings and a frugal lifestyle both before and after her marriage to the 2nd plaintiff, it is reasonable to conclude that she would have continued to save a portion of her income.

22. The Estate Inventory recorded a net value of SEK1,242,149 after discounting liabilities totalling SEK145,078. Listed amongst her assets were a private property, life insurance, bank deposits and stocks. Had she survived and worked until the official retirement age of 65, she would have been entitled to a state pension, that stood at SEK4,300 p.m. at the time of her passing. It cannot be doubted that her pension benefits would have increased significantly with the effluxion of time.

23. The expenditure of the deceased and the husband had never been extravagant. They had always lived well within their means and income. Accordingly, I have no difficult whatsoever in holding that the deceased would have continued to retain a portion of her income after expenditure for her retirement.

24. It has been established that at death her gross net annual income would have been SEK233,443.58 (SEK29,475.20 p.m. less 34% tax x 12 months). Mr. Barretto submitted that the evidence justified the adoption of a notional saving of 15% although 20% would not have been entirely unreasonable and a multiplier of 13, given the deceased's personal circumstances. I agree. I therefore assess her notional savings at SEK455,214.98 (SEK233,443.58 x 15% x 13 years). In local currency, that works out at HK$321,836.99. This award bears no pre-assessment interest pursuant to the decision of the Court of Appeal in Hsu Li Yun v Incorporated Owners of Yuen Fat Building [2000] 1 HKLRD 900.

Bereavement

25. Damages have been agreed at HK$150,000.

Loss of dependency of the husband

26. The deceased, aged 44 at accident and 47 at death, would have been 49½ at the time of assessment. She had always led an active life having been particularly partial to dancing and eating out, enjoying reasonable health and in all probability would have carried on with her budding enterprise with some cleaning work on the side for some considerable years had she survived. Barring unforeseen circumstances, she might well have continued working to about the age of 65, which we have heard was the normal retirement age for women.

27. The 2nd plaintiff, the deceased's only dependent, was 56 years old at accident and 61 at the hearing. He has not returned to work after 1 April 1996. It is likely that he will retire at age 65, drawing on reduced pension benefits to which he would then be entitled and continue to rely on the income and contribution of the deceased. Prior to the accident, his health had been uneventful.

28. The evidence disclosed that the combined household expenses of the deceased and the husband amounted to SEK15,013 monthly. Each would contribute according to his or her earnings. The itemised monthly expenditure has been conveniently summarised in the Revised Statement of Damages as further amended as to the item of rental which had come down to SEK2,999 from SEK4,029 p.m. I accept that the husband would have to shoulder the cost of accommodation, property tax, food, newspaper and car related expenses on his own. I also accept as correct the calculation for the husband's actual dependency upon the deceased of SEK4,217 p.m. There was ample basis for the figure on the evidence.

29. As the deceased was in receipt of state benefits until her demise in January 1999, no loss of dependency has been claimed from accident till then. For accrued loss of dependency pre-assessment, i.e. from 12 January 1999 to 14 May 2001, period of 28 months, a sum of SEK118,076 has been pursued, the multiplicand being SEK4,217 p.m. This is fully justified and will be allowed.

30. In fatal cases, multipliers operate from the date of assessment. Having considered the respective ages, health and probable retirement ages of the deceased and the 2nd plaintiff, and the years of purchase adopted in the cases cited, namely Tsang Ngan-ho & anr v Chan Kan-ming (1974) 4 HKLJ 343, unrep., OJA No. 1570 of 1972, Yip Lan & anr v Wong Bing-senf & anr (1976) 6 HKLJ 133, unrep., OJA No. 2069 of 1974, Wong Suk-yee v Wong Chap & anr (1975) 5 HKLJ 270, unrep., OJA No. 2164 of 1972 and Wong Kit Chun v Wishing Long Hong [2000] HKEC 275, the multiplier of 11 suggested by the plaintiffs seems appropriate.

31. Future loss of dependency of the 2nd plaintiff will be assessed at SEK556,644 (SEK4,217 pm x 11 years). Damages for total loss of dependency amount to SEK674,720 (SEK118,076 + SEK556,644) or HK$477,027.04.

Special damages

1. The loss of earnings of Ho Man Fai

32. Ho Man Fai is the husband of Pilaimart Ho, the natural daughter of the deceased and one of the two personal representatives in this case. He was present when the tragic accident occurred and had quickly moved his wife out of harm's way. Being the only member of the family conversant in Cantonese, he was very much involved during the 6 weeks when he was here with arranging hotel accommodation for the 2nd plaintiff (who, according to Pilaimart Ho, was 'completely confused and distressed by the accident and the condition of my mother..') and other members of the immediate family, and liasing with the hospital, the Swedish Consulate and the insurance company. It was by dint of his intervention that payments were secured from the insurance company and the Swedish consulate. He was responsible for organising items of clothing and other daily necessities for everyone on account of their unexpectedly extended stay. He was also instrumental in contacting the relevant authorities in Sweden to facilitate the return of the deceased, the 2nd plaintiff and his own wife. That his help and presence had greatly comforted and benefited the deceased, and the 2nd plaintiff, not to mention his own wife cannot be doubted. By giving so much of his own time, he had lost two months' wages totalling SEK18,000.

33. Pecuniary loss of a reasonable amount sustained by a 3rd party for the benefit of a claimant is plainly recoverable on the authority of Ho Kwai-loy v Leung Tin Hong [1978] HKLR 72. In the circumstances of the case, it was entirely justified for Mr. Ho to have acted as he did. In the process, the 2nd plaintiff had been relieved from the onerous task of organising his critically injured wife's return to Sweden at a time of great stress and uncertainty. The amount of compensation claimed on Mr. Ho's behalf is not unreasonable, being just HK$12,726 and should be reimbursed.

2. Costs consequential to relocating to and adapting new accommodation

34. The deceased suffered gross impairment and was wholly dependent upon the 2nd plaintiff and latterly two hired helpers for all her daily needs. She required care on a 24-hour basis. The matrimonial home was situated on the 3rd floor of a building in Visby. It became apparent almost as soon as the deceased was permitted home leave from hospital that the existing accommodation would be problematic. For a start, being totally immobilised, she had to be carried up and down three floors in her wheelchair, a task that the husband was only able to perform with the help of two other men. Although the flat was spacious to a degree, it did not readily lend itself to accommodating the requirements of a severely disabled person. The husband's evidence was that it was difficult to look after the deceased, given the layout, lack of suitable facilities, and location of their home. He said it was impossible to bathe her properly in the bathroom and a bucket had to be used instead. It was against this background that he purchased a smaller ground floor apartment and had it properly fitted out with a hospital bed, ramps for the wheelchair, special shower stool, and elevator. Readily accessible and appropriately equipped accommodation at ground level was an essential requirement if the deceased was not to suffer any more inconvenience and difficulty than she already did in her condition.

35. The husband explained that new furnishings had to be acquired as much of what they owned and used on the higher floor no longer fitted in the smaller apartment. Some of the costs of adapting the new home were met by the social security payments. The Swedish Social Security had also supplied at no cost all the special equipment such as a hospital bed, toilet seat, bath seat, wheelchair and mechanical lift.

36. The expense incidental to the move and the adaptation of the new home was a direct consequence of the accident. On the admitted documentation, it totalled SEK115,480 or HK$81,644.36. This amount is entirely reasonable and was reasonably incurred in the circumstances. It was the defence contention that perhaps the cost of replacing a broken television, and of purchasing new lighting fixtures and certain fittings should be ignored as they would in any event have been required. Whilst this is strictly correct, I cannot but conclude that the provision of a minimum standard of comfort and diversion for the totally immobilised deceased was too much to expect.

37. In addressing the issue of alternative accommodation, Seagroatt J had this to say in Chan Yuk v Dragages et Travaux Publics (HK) Ltd & ors [2000] 2 HKLRD 795 at 804B-C:

The concept that has to be grasped is that a man or woman who, by the actions of a tortfeasor, has been deprived substantially of his or her wholeness, is entitled at least to the absolute minimum of alternative environment, which can compensate directly for the limitations, physical and mental which have been imposed.

38. The alternative accommodation at ground level met this objective and I can discern no obstacle in the way of recovering the amount spent on acquiring it for the benefit of the deceased.

3. Care and services rendered by the 2nd plaintiff

39. Full-time care of and attendance upon the deceased necessitated the husband giving up his employment as a chef. It is, therefore, necessary to assess in monetary term the cost of such services. The task would have been the easier if the husband had carried on working, engaging 24-hour nursing care for his gravely injured wife. The husband chose to devote his life and attention to caring for her with state-funded assistants. No one can possibly complain about this. Even with the help of two assistants from 1 December 1996, the level of attention and care required by the deceased who had to be turned in bed from time to time and helped with all her basic bodily functions at all times of the day and night, made it impossible for the husband to continue working if the deceased's welfare was not to be compromised. His decision to remain at home was wholly justified in my considered view. If justification were needed, one needs look no further than the decision of Ta Xuong v The Incorporated Owners of Sun Hing Building [1997] 4 HKC 171.

40. The husband's income certificate for the year ended 1995 disclosed taxable earnings net of social security payments of SEK221,400. His annual gross earnings were SEK239,819 or SEK19,984.91 p.m. He explained that income had been derived from his full-time job as restaurant cook and from extra jobs undertaken during the course of the year. His tax bracket was 34%. His take-home pay immediately before the accident would have been SEK12,177 p.m. (SEK221,400 less 34% tax / 12 months). From the certificate furnished by the hotel and restaurant union of Visby dated September 1998, it is clear that salaries had increased by SEK1,720 p.m. That would represent an annual increment of 8.6% (SEK1,720/SEK19,984.91 x 100%) over the 1995 salary.

41. The deceased was in hospital for some 10 months. In that time, the 2nd plaintiff could have expected to earn SEK13,312.20 net p.m. (SEK12,177 + [SEK1,720 increase p.m. less 34% tax]). Over this period, his care and management of the deceased would notionally have cost SEK133,122 (SEK13,312.20 p.m. x 10 months). This amount is recoverable.

42. From 1 December 1997, the 2nd plaintiff had help in caring for the deceased at home from the Swedish Government which had provided two assistants working 8 hour shifts each for 20 days a month or a total of 320 hours per month. The cost to the tax payers amounted to SEK1,031,725 for the year of 1997. For his role, the husband was paid SEK21,079 every month or SEK107 per hour by the government. This was based on 197 hours of care a month that he himself had provided. That left many hours of unremunerated services that he gave to the deceased without assistance from anyone. Monthly government-funded assistance totalled 517 hours (320 hours from helpers + 197 hours from the husband), leaving the husband to manage on his own for 203 hours per month over a 30 day month.

43. Mr. Barretto submitted that such unpaid care should be compensated by reference to the hourly rate adopted by the Swedish Government. With that I concur. The amount payable for the remainder of the deceased's life thus works out as follows:

SEK107 x 203 hours x 23½ months (February 1997 to 12 January 1999) less 34% tax = SEK336,892

44. Damages payable under this head come to SEK470,014 (SEK336,892 + SEK133,122) or HK$332,299.89.

Funeral expenses

45. The defence has admitted the costs of the funeral arrangement in Sweden. The Swedish service cost SEK35,575. This will be reimbursed in full.

46. It was the wish of the deceased (according to the husband) that her remains be returned to and interred with Buddhist rites in the place of her birth alongside her late father in Thailand. That wish was indeed honoured by her husband and children. Although she had settled in Sweden, she never severed her roots with her own country which she had visited whenever she could in the past to maintain links with her own family. Even at time when she was under grave disability, she managed a trip back to her village.

47. Following her death, her son and daughter, the personal representatives, organised the return of her ashes and the burial ceremony that followed. The evidence was that the entire village had been invited and the mourners were supplied with food and beverages as was the custom. The entire cost including airfares for 5 adults and 2 grandchildren came to SEK60,642 or HK$42,873.89. It was in the main properly substantiated by receipts. Considering the scale of the Buddhist ceremony, the number of attendees and the fact that hired hand had to be secured to prepare for the meal and the cleaning up thereafter, the cost was by no stretch of the imagination unreasonable or exorbitant. It was the defence submission that allowing these expenses would tantamount to double recovery following the decision in Kwan Ching Tong Herbert v Luk Lai Kwan [1990] 1 HKC 253. I do not agree. Much would depend on the circumstances under consideration. Reasonable funeral expenses have always been awarded even where more than one religious rite or funeral was involved: Wong Sau Wah & anr v Leung Kan Cheuk & anr [1982] HKC 333 and Loong Choi Wing v Yam Kit Ying & anr [1987] 2 HKC 482.

48. The plaintiffs contended that the approach in Kwan Ching Tong Herbert, supra ought not to be adopted as it failed to adequately cater for the cross-cultural background and the stated desire of the deceased in the present case. I cannot agree more. I find it was entirely reasonable and justified to have transported the deceased's remains back to her homeland, to have incurred the expense of air passage for the husband, his step-children and their family members to attend the funeral in Thailand, and to have held another religious ceremony attended by the deceased's friends and relatives. As to the cost of the airfare for the son's girlfriend amounting to just SEK8,000, it would not be fair to expect the defence to meet it merely upon the basis that she was known to the deceased and the deceased would have liked her to be present. Accordingly, the Thai expenditure will be discounted by SEK8,000, leaving a recoverable balance of SEK52,642.

49. In gist, I allow funeral expenses of SEK88,217 (SEK35,575 + SEK52,642). These come to HK$62,369.41, a modest sum by local standard.

Claims of the 2nd plaintiff

Pain, suffering and loss of amenities

50. The husband was struck over the head by falling masonry, and was momentarily stunned. When he regained his composure, he was horrified to see his wife lying on the pavement motionless with her head split open and bleeding and her scalp detached. Despite his own head injury, the continuing danger from falling concrete and mounting panic, he quickly tried to resuscitate her as she had no pulse. He had been trained for emergencies as a fireman, but nothing had prepared him for the shock and horror of seeing his wife lying there seemingly lifeless and so very gravely injured.. His principal concern then and right up to the time of his wife's untimely death was her well-being. As he poignantly admitted, she was his life.

51. The husband was briefly cross-examined as to why the doctor who had examined him at Queen Elizabeth Hospital had noted that there was no history of vomiting and neck pain. He said he made no such complaints at the time, fearing that he might become separated from his wife if he himself became hospitalised, something he was determined to avoid. Even though he was suffering from dizziness, headache and was feeling sick, he said he did not mention his condition so as to be able to attend to his wife as soon as possible. Having heard him testify and seen his single-minded devotion to his wife during her long confinement, his explanation has a ring of truth.

52. His head wound received a number of stitches and he was discharged the following morning with painkillers and balm to ease the neck pain. It was his evidence that he still suffered occasional headaches and would experience dizziness whenever he moved his head. Pain and stiffness in the neck were daily occurrences. Several times a week, he would also have pain in the right leg and a sensation of loss of strength in the right arm. These continuing problems have been managed by analgesics.

53. The medical report of Dr. Henry Lam of Queen Elizabeth Hospital dated 15 August 1997 confirmed that the 2nd plaintiff had sustained a one ½ inch laceration, a 2 ½ inch laceration and an abrasion wound over the parietal-occipital region of the scalp. There was no skull fracture or any history of loss of consciousness. The injuries were stitched and an anti-tetanus injection was administered after which the 2nd plaintiff was kept overnight for neuro-observation. Permanent disability was ruled unlikely. Dr. Lam however advised post-head injury home observation. Dr. W. H. Chow's observation and diagnosis were in almost identical terms.

54. Back in Visby, the 2nd plaintiff consulted Dr. P. Jorneus, a general practitioner. The physician was satisfied that his patient with complaints of neck pain and occasional pain in the right thigh was still suffering from the effects of his injuries. In particular, he concluded that the pain and neurological findings were consistent with injuries inflicted by the accident.

55. The medical certificate dated 2 July 1998 of Dr. Erik Belfrage, a senior physician and specialist in psychosomatic medicine at Karolinska Hospital disclosed that the 2nd plaintiff had suffered a head injury in the 1970s for which he had been hospitalised for approximately 24 hours, presumably for observation. The injury would not have been of great moment as no further comment was offered. In 1996, the 2nd plaintiff underwent tests for heart and neurological functions following complaints of chest pains. No particular pathology was indicated at the time. Neurological examination after the present accident revealed some pathological signs during the first month. These, however, later disappeared. X-ray established that his neck was normal in July 1996, but the CT scan of the head revealed signs of a former infarction.

56. The 2nd plaintiff had complained to Dr. Belfrage of feeling considerable fatigue from caring for his wife and intense psychological pressure after the accident and of having 'lost his wife'. He spoke of crying several times a week and of experiencing daily neck pain and pain in his right leg several times a week which he managed with painkillers. There was an accompanying loss of strength in the right arm. Dr. Belfrage concluded that the 2nd plaintiff's life had changed dramatically after the accident and that he was exhibiting moderate signs of reactive depression as well as tension neck pain. He was otherwise considered neurologically sound.

57. An assessment by a clinical psychologist, Dr. Bengt-Ake Angelow took place in June 1998. The diagnosis revealed that the 2nd plaintiff was suffering from mood swings and the effect of drastic changes to his life, compounded by the deceased's inability to communicate in any meaningful manner and the loss of her society. Dr. Angelow noted that the 2nd plaintiff, who was still had pain in the shoulders, neck and right leg, was very bitter, showing signs of higher personal lability and depression. His mild abnormal specific cognitive problems were considered consistent with the tragic accident having been a cause. The level of disability arising from reduced minor cognitive abilities and depression was assessed at 10% along the guidelines of the Swedish Insurance Federation.

58. Mr. Yung, counsel for the defence contended that the clinical findings have failed to link the 2nd plaintiff's predicament with the calamity that befell him and the deceased. That is of course true, but Dr. Angelow had specifically commented that the accident as a cause could not be excluded.

59. The 2nd plaintiff was seen again by Dr. Jorneus in March and September 1999. The doctor certified that his patient was suffering from severe bereavement reaction following his wife's death in January, with depression, fatigue, reduced respiratory function and anxiety. This latest certification was the basis for the defence contention that the root cause of the plaintiff's mental impairment and inability to function normally or carry on working after his wife's death was grief and sorrow, and the stress and strain from having had to nurse his very sick wife. In sum, damages for such complaints are irrecoverable as the chain of causation would have been broken. In developing his argument, Mr. Yung drew support from Mcloughlin v O'Brian [1983] 1 AC 410, Jaensch v Coffey [1984] 155 CLR 549 and Hinz v Berry [1970] 2 QB 40.

60. On matter of principles, one can have no argument with these authorities. The issue falling to be determined is whether the body of medical evidence furnishes the necessary nexus between the 2nd plaintiff's disability and the admitted tortious act of the defendant. In this respect, Mr. Barretto pertinently observed that the different medical terminology adopted by Swedish doctors for conditions attracting more familiar labels in Hong Kong would render one's task more onerous. That may well be so. Ultimately it remains a question whether the 2nd plaintiff has established on a preponderance of probability that all that he has complained of was attributable to the accident.

61. The latest medical examinations of the 2nd plaintiff occurred in May 2001. He was seen once again on 1 May 2001 by Dr. Angelow at the Visby Psychiatric Department. He noted the following under 'Present Condition':

Mr. Wanlayaphol suffer from an extract, prolonged and delayed process of grief after his wife pasted away 12 TH. Januar 1999. The level of somatic anxiety and muscular tension are too high and the level of social desirability and socialisation are too low. During a period of 1.5 year after the funeral Mr Wanlayaphol had no energy to work. In the summer of 2000 he tried to go back to work but failed and had to interrupt an employment as chef in a restaurant in Visby.

Mr Wanlayaphol has suffer from different case of psychosomatic illness during the last two years;

* high level of anxiety in forms of sleeping disturbances (Imoven)

* high blood pressure (Vivatec, Trombyl, Nitrolingual and Sparkal)

* a lot of colds and an easyness to catch colds (Atrovent, Acetylcysterin)

* a high amount of cigarette consumption

* suffer of depression

The grief and the extract, unregulated trial of damages in Hong Kong has put Mr Wanlayhapol in a high economic, social, personal pressure which significant has decreased his possibilities to work. Care has been given in wards of Medicine, Infection, Acute and by his family doctor.

The big amount of illness and the luck (sic, lack) of ability to handle an employment has forced him to a decision to be a pensioner at 61 years old. From the 29 Th. of July 2000 Mr Wanlayaphol is a pensioner. Four years before the ordinary timelimit for to bee retired in Sweden.

It is beyond every doubt that without the accident in April the 1st 1996 and his wife decease in January the 12th 1999 had Mr Wanlayaphol still been connected to the working life with a much higher lifequality and physical and mental health.

62. On 3 May 2001, Dr. Belfrage had occasion to examine the 2nd plaintiff once more. He diagnosed him as having multiple psychosomatic disorders and was satisfied that his problems were directly caused by the accident and the subsequent demise of the wife. He opined that the 2nd plaintiff's condition was chronic, it having persisted for some two years following the wife's death. He further noted that the 2nd plaintiff's chances of securing employment were minimal.

63. The 2nd plaintiff's own account of his life since the accident makes for harrowing reading. That he had suffered permanent disabilities, tremendous anxiety, stress and grief recognised by the various physicians and clinicians who had examined him to date, I entertain no doubt whatsoever. All these have had a devastating impact upon his ability to function at a normal level. He has become most decidedly a shell of his former self and has had to take early retirement. Given the debilitating circumstances confronting him, I cannot discern what he could have done to mitigate his damages. He has consistently sought professional help, but that was to no avail. Sympathy aside, I am compelled by the evidence to conclude that his present condition is the end product of the defendant's negligence. Whilst his initial physical injuries were relatively minor, the impact of the accident upon his life had been suppressed by a near obsessive devotion to his injured spouse whose interest he had clearly accorded priority over his own welfare. Her companionship and existence had meant everything to him. When she eventually passed on, his own problems caused by the accident surfaced and began to manifest themselves as particularised in the medical history. To adopt Mr. Barretto's analogy, it was as if a cork had been popped.

64. Having to live with and nurse a gravely disabled wife and to witness her suffering for upward of 3 years round the clock even at the expense of one's own health and welfare cannot result in damages for which a tortfeasor can be held accountable. Compromised health or illness flowing from grief, sorrow or stress following the tortious injury or death of a close family member produces a similar result. That much is clear on the authorities cited by counsel.

65. On the evidence, I am satisfied to find that the constant care and worry and the overwhelming grief felt by the 2nd plaintiff had aggravated the injuries he sustained in the accident. They were not in themselves causative of his impairment. His unrelenting body pains, reduced cognitive power, depression, changes in mood, slow reaction, breathlessness, and a general feeling of weakness were indicia of that injury. All these complaints pre-dated his wife's death. I find that he had suffered both physical and psychiatric injuries in the accident.

66. Mr. Barretto's attempts to categorise the 2nd plaintiff's illness in terms familiar to personal injury litigation in Hong Kong was laudable, but in the end, I did not find them particularly helpful. Whether the 2nd plaintiff's symptoms should be labelled as post traumatic stress disorder or viewed as the consequence of actionable nervous shock (which might well be the case here: see Jones v Wright [1991] 3 All ER 88, Wong Yiu Wing v To Chark Wah & anr [1993] 1 HKC 510) cannot readily be definitively addressed in the absence of any direct medical evidence diagnosing and explaining such illnesses. But that is of no consequence in light of my earlier findings. The 2nd plaintiff received direct impact injuries and was exposed to the full shock of his wife's plight on 1 April 1996. That brought on a genuine psychiatric illness that had been largely suppressed by his pre-occupation with the wife's needs. All the diagnosed symptoms were but the manifestations of that mental and physical illness for which compensation must be given.

67. The 2nd plaintiff's condition falls in my considered view within the top end of the 'serious' injury category as classified in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. I consider that an award of HK$600,000 is entirely justified and proper in the circumstances.

Pre-trial loss of earnings

68. I have previously allowed the 1st plaintiff's claim for care and services rendered by the 2nd plaintiff to the deceased in full. In doing so, I have found that the 2nd plaintiff's gross salary for 1995 net of social security payments was SEK19,984.91 p.m. The evidence revealed that his earnings would have increased by 8.6% per annum to SEK$24,414.72 by September 1998. The median wage for this period would have been SEK22,199.82 (SEK19,984.91 + SEK24,414.72/2).

69. The Swedish Government paid him SEK21,079 p.m. for his services to his wife from January 1997 until her death in January 1999, amounting to SEK505,896 for the 24 month period. He had also derived income from sick leave and pension payments, which after relevant taxes have been paid, came to SEK163,930 from the computation of Mr. Barretto that I have accepted as correct.

70. His gross pre-assessment loss of earnings from accident to 15 May 2001 would have been SEK552,547.45 (SEK22,199.82 x 60½ months less 34% tax - SEK21,079 x 24 months less 34% tax). Credit will have to be given for the sum awarded for his care and services to his wife of SEK470,014. This will produce a net loss of SEK82,533.45 or HK$58,351.15.

Post trial loss of earnings

71. As transpired, the 2nd plaintiff through ailment brought on by the accident had retired before the official age of 65. He was 56 years and 9 months at accident and 61 years and 10 months at the assessment. A multiplier of 3 was urged and I consider that appropriate. Past annual increment of 8.6% p.a. was adopted on the evidence of the restaurant union. In light of the global economic downturn of recent years, such a percentage no longer accords with reality. I am prepared to adopt a reduced rate of 3% increase annually over the 1998 wages when assessing the appropriate multiplicand. By September 1998, his earnings would have risen to SEK22,199.82. Accordingly, his post trial loss of earnings would be computed as follows:

SEK22,199.82 x 1.03 x 1.03 x 1.03 x 12 x 3, less 34% tax = SEK576,378.22 or HK$407,499.40

Loss of pension entitlement

72. The 2nd plaintiff has plainly suffered a loss of pension benefits by having to leave the work force earlier than anticipated. This must be compensated in full.

73. Had he worked to the usual age of 65, he could have expected to receive retirement payments of SEK11,800 p.m. As it is, his payments are now reduced by SEK1,600 p.m. to SEK10,200 p.m. Taking into account his current age, a multiplier of 11.5 as suggested seems to me to be inordinately high. 8 would be about right in my considered view.

74. Damages under this head I quantify as:

SEK1,600 p.m. x 12 x 8 less 34% tax = SEK101,376 or HK$71,672.83

Special damages

75. These have not been seriously challenged. They cover the costs of additional living expenses in Hong Kong prior to repatriation to Sweden, forfeited expenses of a holiday in Thailand that would have taken place but for the tragic accident and sundry medical treatments and special foods. These claims for which recompense is sought were reasonably incurred as well as being reasonable in quantum and will be allowed. Hence, damages under this section are awarded in the sum of (SEK95,680 + HK$16,000) HK$83,645.76.

Conclusion

76. There shall be interests at appropriate rates and for appropriate periods on general and special damages. The plaintiffs shall have their costs of the assessment, taxed if not agreed, with certificate for counsel. Legal aid taxation is ordered.