TAM TING YEE v. LAI YING CHEUNG

HCPI 1120/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1120 OF 2002

---------------------

----------------------

------------------------

JUDGMENT

------------------------

Assessment

1. This is an assessment of damages in relation to the plaintiff's claim in which the plaintiff suffered a severe head injury in a traffic accident which occurred on 20 December 1999.

2. Liability is not in issue since by consent of the parties, interlocutory judgment has already been entered in favour of the plaintiff against the defendant with damages to be assessed. That interlocutory judgment is contained in the order of Master Kwan dated 27 February 2003.

3. Insofar as assessment of damages is concerned, I was informed at the start of the hearing by both counsel that the parties have come to agreement between them in respect of all the items claimed by the plaintiff save and except for one item claimed, namely, the costs of future care of the plaintiff. This, I am told, is the only one issue which the court is asked to adjudicate on at this hearing for assessment of damages.

4. I have further been informed by both parties that the total amount of the agreed items which the parties have been able to reach agreement on (excluding the amount which I am asked to assess in relation to the future care of the plaintiff at this hearing) comes to $10,002,023.50. Of this agreed amount $2,000,000.00 was for pain, suffering and loss of amenities. This assessment therefore is limited to dealing only with the one outstanding item which the parties could not reach agreement on, namely the costs of future care of the plaintiff.

The plaintiff's injuries and treatment

5. The plaintiff was taken to Pok Oi Hospital immediately after the accident in a comatose state with Glascow Coma scale ("GCS") of 3/15. There was bleeding from nose and ear and bruising. He was intubated and put on artificial ventilation and transferred to Tuen Mun Hospital.

6. Tests carried out at Tuen Mun Hospital showed a depressed skull fracture and an epidural haematoma. Emergency craniectomy and clot evacuation was performed on the same day, i.e. 20 December. The plaintiff was then placed in the Intensive Care Unit where his condition deteriorated on 22 December due to increasing cerebral oedema. The operation site was re-opened, frontal lobe removed and intracranial pressure monitoring was performed.

7. On 29 December, a trachaeostomy was performed for artificial ventilation. The plaintiff's condition then stabilized gradually. By 5 January 2000, he was able to breathe normally with a Glascow Coma scale of 9/12. The plaintiff was then transferred to the neurological ward where he developed pneumonia and gastro-intestinal bleeding. These were treated conservatively.

8. On 12 May 2000, he was transferred to Tai Po Hospital. He was conscious but aphasic (i.e. unable to communicate). He was wheelchair-bound and dependent for activities of daily living on others. He was doubly incontinent. He was only able to swallow soft food with occasional choking. His trachaeostomy tube was removed while he was at Tai Po Hospital.

9. On 16 April 2000, the plaintiff was transferred to Pok Oi Hospital. His condition remained constant. He suffered frequent pressure sores, particularly at the sacral region. He suffered episodes of post-traumatic epilepsy, involving loss of consciousness and general tonic convulsions. He was put on anti-convulsant medication.

10. The plaintiff remained In hospital until 31 March 2003 when he went home to live with his family in Fairview Park. The family had just shortly before that time moved into a unit in Fairview Park to provide a suitable living environment for the plaintiff.

11. From the time the plaintiff moved home until April 2004, the plaintiff's wife had cared for him with some assistance from their elder daughter and the wife's sister, providing effectively a 24-hour care regime for the plaintiff while also performing all the necessary domestic work.

12. In April 2003, the plaintiff suffered an episode of urinary tract infection for which he was hospitalized for about seven to nine days.

13. In April 2004, a domestic helper arrived and began to assist the plaintiff's wife with caring for the plaintiff.

The opinion of the experts

14. The opinion evidence relating to this one item in dispute between the parties have been expressed by five expert witnesses, four of them being medical experts and one a jointly instructed rehabilitation expert :

(1) Dr Robert Ho, the defendant's neurologist, advises a full-time China trained nurse together with a domestic helper for the plaintiff's future care;

(2) Dr Yu Yuk Ling, the plaintiff's neurologist, advises a day-time care assistant and a full-time domestic helper for that purpose;

(3) Dr George Koo, the plaintiff's urologist, advises a full-time domestic helper in addition to a China trained nurse for the future care of the plaintiff;

(4) Dr Julian Chang, the defendant's orthopaedic expert, advises a day-time assistant either in the form of a Filipina maid or a nurse aid;

(5) Mr Andrew Kwok, being the jointly instructed rehabilitation expert (but not a medical expert) advises round the clock (two shifts) of China trained nurse and domestic helper.

It should be noted immediately that all the experts are unanimously agreed that the plaintiff's wife has done an excellent and wonderful job in looking after the plaintiff and taking care of his every need ever since his discharge from hospital and returning home to live with his family. Indeed, the opinion expressed by Dr Yu, Dr Ho and Dr Chang referred to above are all predicated upon the premise of the plaintiff's wife returning to her previous work as a supervisor of dim sum waitress in a restaurant. It follows therefore that all of the experts took the view that the level of care provided by the plaintiff's wife in taking care of the plaintiff was amply adequate and sufficient.

The present requirements of the plaintiff

15. According to a report of Mrs Shelley Chow, the plaintiff now spends his time listening to music or staring at the TV, mute with no reaction. He lies in bed, sits in his wheel-chair or on the sofa. He is quite lacking in response and dull with a flat affect. His response to commands fluctuates in that he gave his hand to the examiners on one occasion when asked to but not on others. Also, he is not fully orientated in time, place or person and it is unclear whether he has an awareness of the time of the day.

16. As for depression and anxiety, Mrs Shelley Chow states :

"He does not appear to have the insight which would lead to this".

Moreover, there is evidence that the plaintiff's wife had told Miss Irene Kwok that the plaintiff would watch television but she was not sure how much he could comprehend. The evidence from the wife is effectively that the plaintiff is still the same and in fact the plaintiff sleeps for long periods of time.

17. Seemingly, there is no irritability, temper outburst, aggression, disinhibited behaviour or altered personality insofar as this plaintiff is concerned. The plaintiff's condition appears to have largely stabilized since December 2000 and that complications have been few. The evidence of the plaintiff's wife is to the effect that since mid-2003 there has been no pressure sores. Indeed, those pressure sores on the feet only developed for those seven or nine days when he was in North District hospital but have since been resolved.

18. The urinary tract infection, epileptic seizures and other complications are now largely under control. Spasms are less frequent. What the plaintiff now needs from the carer includes the following :

(a) frequent checking or changing of diapers so as to prevent rashes or sores, the diapers need to be checked every one to two hours;

(b) the ability to cope with spasms or seizures as and when they occur;

(c) the ability to perform stretching exercises to prevent joint contractures;

(d) the ability to detect the onset of infections at an early stage as these can be life threatening to a person in the plaintiff's present condition, namely his inability to communicate;

(e) being conscious of the need for exacting hygienic standard in view of the plaintiff's susceptibility to infections; and

(f) the ability to perform these tasks without any helpful indication from the plaintiff as to the existence of such needs.

The plaintiff's wife ― the caring for the plaintiff

19. As already stated since the plaintiff moved back home to live in about April 2003, he has been mainly cared for and looked after by his wife with some help from the elder daughter and the wife's sister.

20. His wife, Leung Yuk Chun, is now 49 years of age. She was born in Hong Kong but was brought up and educated in Mainland China. She married the plaintiff in China in 1979. She then returned to Hong Kong in 1986. The plaintiff came to Hong Kong in 1995. They have two daughters, the elder born in 1980 and the younger, in 1988. The plaintiff's wife is educated up to Form 2 in China. In China she has worked as an accounts clerk in the Guangzhow Food Department. After she returned to Hong Kong in 1986, the plaintiff's wife has worked for over 10 years as a supervisor of dim sum workers in a restaurant. She gave up that work in April 2002 in order to take care of the plaintiff after his accident.

21. Before the accident to the plaintiff, the plaintiff's wife has had no experience caring for a person in the condition of the plaintiff after his accident. Up to the time of the trial, despite the fact that she now has a domestic helper at home since April 2004, she is still the person mainly responsible to look after and take care of all the needs of the plaintiff at home.

22. The present domestic helper which she has at home now is only her third choice. This domestic helper has no nursing experience. In fact when looking for a domestic helper, the plaintiff's wife had wanted to engage one with some nursing experience or experience of looking after people with a condition. Her first choice was a domestic helper with some experience of looking after pregnant women. However, both her first and second choices were not interested in taking on this job having to look after a person in the condition of the plaintiff. Therefore, she was relegated to her third choice which is the present domestic helper she has.

23. The plaintiff's wife has given evidence that she is not comfortable to leave the plaintiff entirely in the care of this domestic helper. The reason which she gave is that this domestic helper is not quite up to the standard which the plaintiff's wife has set for herself in looking after and, in particular, cleaning the plaintiff each time his diapers are changed. If the plaintiff is not properly cleaned, it happens that his skin will break out in rashes. For that reason, she has set herself a rather high standard in not just cleaning the plaintiff but also generally in the care and maintenance of him.

24. There is also evidence that at present when the wife has to go out of the home to do some shopping or marketing, there are times when she has no alternative but to leave the plaintiff in the care of only the domestic helper at home for some two hours or so. But she feels uncomfortable with that and tries her best to rush home in as short a time as she possibly could.

25. In cross-examination, she said that she would feel more comfortable if her elder daughter could look after the plaintiff when she was out of the house instead of the domestic helper. However, the daughter is not quite strong enough to move the plaintiff by herself when cleaning him and, besides, the daughter is now engaged in full-time work.

26. The plaintiff's wife has now expressed a desire to return to her work in a restaurant in that since she started to look after and take care of the plaintiff after he returned home from hospital, she has not had any time for herself at all.

The plaintiff's stance

27. The plaintiff's stance in this matter is based on primarily the opinion suggested by most of the experts. With the exception of Dr Julian Chang, all the experts recommend at least some degree of nursing care for the plaintiff. The primary case of the plaintiff is that he ought to have the services of a China trained nurse during the day and a China care assistant at night. This position is based on the care regime awarded in the case of Ta Xuong v. Incorporated Owners of Sun Hing Building [1997] 4 HKC 171.

28. The secondary and fallback position of the plaintiff is that there should be a day-time care assistant plus a domestic helper for the first six years of the future care period (the multiplier being agreed at 12). In the second six years of the future care period when the condition of the plaintiff can be expected to deteriorate, he should have a China trained nurse during the day and a domestic helper at night. This regime is based on what was provided for in Chan Yuk v. Dragages et Travaux Publics (HK) Ltd and Ors [2000] 2 HKLRD 795 (Court of First Instance); [2000] 3 HKLRD 1 (Court of Appeal).

29. The final fallback position of the plaintiff is that at the very least the plaintiff ought to have the services of a China care assistant during the day and a domestic helper at night. This would be similar to what was provided for by way of care regime in the case of Lee Suk Yin v. National Insurance Co. Ltd representing the estate of Ngai Chung Lit, deceased, HCPI 439/2000.

The defendant's stance

30. The defendant suggests as their primary position that two full-time domestic helpers with one of them possibly having some nursing experience will suffice to take care of the needs of the plaintiff in this case. Their fallback position in the alternative would be one China care assistant on an 8-hour shift in the day-time and a full-time domestic helper. The basis upon which these suggestions are made by the defendant are as follows :

(a) What is required by this plaintiff is not so much medical care but rather looking after, in particular checking the diapers every one or two hours and cleaning him when necessary.

(b) That the plaintiff's wife having performed such an excellent job all this time in looking for the plaintiff further highlights the fact that a person with no nursing or medical experience is sufficient to look after the needs of this plaintiff. The present complaints of the plaintiff's wife as to the present domestic helper is not that she has no nursing experience but rather that she does not follow her instructions to the latter and is therefore not up to the standard expected of her by the plaintiff's wife.

(c) The condition of this plaintiff who sleeps for most of the day when not sitting in front of the television with little or no reaction, is very different from the plaintiffs in Ta Xuong's case and in Chan Yuk's case. There is therefore little or no requirement here for a trained or experienced care-giver to look after this plaintiff.

Decision

31. There can be no doubt that the plaintiff's injuries in the present case are serious and he is permanently dependent on others. He suffers severely impaired higher mental functions, severe dysphasia, epilepsy, right hemiparesis, left hemiplegia, bladder and bowel dysfunction. There is weakness of his right upper and lower limbs. He can use his right hand to eat and scratch. His left upper and lower limbs suffer complete spastic paralysis. His ability to communicate has been compromised. He also suffers impairment in vision.

32. Whilst I accept that this plaintiff may not be in the same class with Ta Xuong or Chan Yuk where the regime for future care is concerned, I have little doubt that the one outstanding feature in this case which would require some form of nursing experience in the care-giver is the fact that the plaintiff's ability to communicate is compromised to a great extent. Moreover, the kind of injuries sustained by this plaintiff are such that they can easily give rise to different forms of complications. That much is not disputed by the experts. The fact that the plaintiff has to date been free from such complications may well be due to the fact that he has been looked after and cared for in the excellent way by his wife. I have been thoroughly impressed by the knowledge shown by the plaintiff's wife when she was giving evidence as to how to manage and care for the plaintiff upon different situations arising. I have no doubt that she has learnt and remembered down to the last detail as to what needs to be done with the plaintiff given different situations arising because of her dedication, her love and her care for him as her husband. Now that she has expressed a desire to have a life of her own and to return to her previous work, her role as the care-giver to date must necessarily be taken over by another without in any way compromising the standard that she has set since that standard cannot be said to be an unreasonable standard by any yardstick and which has proved to be beneficial to the plaintiff.

33. I do not accept the defendant's submission that if the plaintiff's wife and daughter, who are not experienced or trained care-givers, can perform that work satisfactorily then it follows that a domestic helper or two domestic helpers would be sufficient to take over the role of care-givers. I take the view that whilst the plaintiff's wife, and to a lesser extent his elder daughter, were not experienced care-givers, they have, over time, learnt a sufficient amount of detailed knowledge which puts them in the same position, if not better, than an experienced care-giver. In my view, therefore, the care regime that should be provided for this plaintiff should be a China trained assistant in the day-time for a 12-hour shift together with a full-time domestic helper who would be able to help out in the night in moving the plaintiff in bed and in checking and changing his diapers for him.

34. The scenario that I have in mind would be that whilst the plaintiff's wife is at work in the daytime, the main responsibility for looking after the plaintiff and caring for him would fall upon the China trained assistant. For this it would be necessary to engage her for a 12-hour shift instead of the 8-hour shift suggested by the defendant. This would give sufficient margin for the plaintiff's wife to do her shopping or marketing after work and then to return home before the China trained assistant finishes her shift. Being the loving and dedicated wife that she is, I have little doubt that upon her return home from her work outside, the plaintiff's wife would not be able to completely divest her from looking after or caring for the plaintiff or perhaps supervising the domestic helper from doing so. But in one way or another, she will almost certainly be involved in taking care of him in the evenings of her own volition.

35. The yearly cost for a China care assistant on a 12-hour shift inclusive of food and insurance is worked out by counsel in their written final submission at $180,665.00. I accept the way that figure was compiled and adopt it. As for the yearly cost of a domestic helper, this is worked out by counsel for the plaintiff in her final submission at $85,000.00 per year. The $85,000.00 per year was used despite the fact that the evidence of Mr Kwok, the rehabilitation expert, and which was adopted by the defendant in its calculation, shows that the yearly cost of a domestic helper inclusive of food, insurance, holiday relief as well as leave passage comes to just over $70,000.00 per year. That increased yearly cost for a domestic helper is in line with the award made in the case of Lee Suk Yin and the reason for such an increase was to cater to the fact that the domestic helper, having to check and change diapers for the plaintiff and to turn him over in bed twice during the night, may well find her night time sleeping truncated for which she may well have to make up for during part of the day when there will be a China trained assistant looking after the plaintiff. I am therefore prepared to accept the yearly cost for a domestic helper to be at the higher figure of $85,000.00.

36. As already stated above, the multiplier of 12 has been agreed between the parties insofar as the future care of the plaintiff is concerned. The total amount worked out from this comes to $3,187,980.00. That is therefore the amount that I will assess for the plaintiff under this head of claim.

Interest

37. I am also told by the parties that the amount already agreed between the parties does not take into account interest. Interest will therefore be awarded at 2% per annum on general damages, namely, pain, suffering and loss of amenities as well as loss of society, from the date of the writ until judgment and thereafter at judgment rate. Interest on all special damages and pre-trial expenses including pre-trial loss of earnings will be awarded at 4% (being half judgment rate) from the date of the accident until judgment and thereafter at judgment rate.

38. I should now hear the parties on costs as I have not been told by the parties whether they have come to any agreement on costs. Moreover, this is not a case in which I should make a costs order nisi as it is quite different from the normal case of assessment in that there is only this one outstanding head of claim in dispute, the rest having been agreed between the parties.