LEE SUK YIN AND OTHERS v. NATIONAL INSURANCE CO. LTD.

HCPI 439/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.439 OF 2000

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ASSESSMENT OF DAMAGES

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1. This claim arises when the 3rd plaintiff was a passenger (as were the 1st and 2nd plaintiffs) in a vehicle (registration No.FF 7534) owned and driven by the deceased, Ngai Chung Lit, along the Shatin bound carriageway of Sai Sha Road in the vicinity of Li On Estate at about 11:00 p.m. on 16 April 1997, and due to the negligent driving of the deceased, the vehicle went out of control, collided with various barriers on the road and overturned.

2. Judgment was entered against the defendant in favour of all the plaintiffs on 13 October 2000. This is now the assessment of damages in relation to the 3rd plaintiff in this matter. The case relating to the 1st and 2nd plaintiffs have already been dealt with and this assessment does not concern them.

INJURIES TREATMENT AND DISABILITIES

3. After the accident, the 3rd plaintiff was taken to the Prince of Wales Hospital where he was admitted into the Intensive Care Unit ("ICU") suffering from :

a. burst fracture of the C6 vertebra;

b. severe head injuries involving loss of consciousness, subdural haematoma, and disorientation;

c. pulmonary contusion.

4. The C6 fracture was immobilized with a halo ring and jacket which was kept on for four months. The subdural haematoma and lung contusion were treated conservatively. He remained in the ICU for close to one and a half months and was transferred out of the ICU to the general orthopaedic ward on 28 May. He was disorientated for some three months following the accident. He was transferred to the Shatin Hospital for further rehabilitation in June and from there to the Tai Po Hospital in November 1998. During his stay at both the Shatin and Tai Po Hospitals, he received regular physiotherapy, occupational therapy, training in bladder care, and psychological counseling.

5. After some 22 months of hospitalization, he was finally discharged home on 13 February 1999. Since his discharge from hospital, he has been and still is regularly attending follow ups at the Tai Po Hospital Orthopaedic Clinic once every three months, the Tai Po Hospital Urology Clinic once every three months, and the Alice Ho Miu Ling Hospital once every six months. He also receives traditional Chinese medicine, therapy and acupuncture.

6. However, it was not until February 2001, because of financial constraints, that the 3rd plaintiff's family have been able to arrange for him to receive physiotherapy treatment in the form of a physiotherapist visiting his home once to twice a week. Since the physiotherapy started, the pain and stiffness in his neck and shoulder regions have improved.

7. In so far as his disabilities are concerned, there is complete spastic paralysis in his lower limbs with recurrent painful spasms including clonus (i.e. rigidity and relaxation of muscles alternating in rapid succession) at the patella and ankle. His lower limbs have also grossly diminished sensation and muscle wasting.

8. There is complete paralysis of the trunk with grossly diminished sensation and marked muscle wasting. During his hospitalization he had large pressure sores in his sacral region but these have healed and have not recurred.

9. He also has what is known as "left dorsolumbar kyphoscoliosis" which is a condition involving the abnormal curving of the spine. The "kyphosis" consists of an increased convexity in the curvature of the spine viewed from the side and the "scoliosis" consists of a lateral curving of the normally straight vertical line of the spine. This abnormality is found in the lower part of the left back (dorsal) and lower back (lumbar) regions.

10. There is also recurrent cramps in the lumbar region and left abdomen as well as persistent low back pain increasing with cramp.

11. Urologically, he has bladder dysfunction with poor bladder sensation, urinary incontinence and incomplete voiding. The urinary incontinence is managed by the use of Paul's tube (an external condom collecting device that is strapped to the penis) day and night which has caused penile skin problems. He also suffers from spastic obstructive sphincter causing vesico-ureteric reflux (i.e. reflux of urine from the bladder to the kidney) which has already led to the development of reflux hydronephrosis of the kidneys.

12. He also suffers from bowel dysfunction with partial bowel sensation and very occasional incontinence. Bowel motion is managed by the use of anal suppositories once every other day.

13. Moreover, the injuries have left him sexually impotent from erectile dysfunction and total loss of sensation over the genitalia.

14. The 3rd plaintiff suffers from incomplete paralysis of his upper limbs. In his shoulders, grade 4 power is retained and the vibration sensations have been reduced. There is however, persistent pain along both scapular regions, the left anterior chest and the left axilla with some muscle wasting.

15. As for the elbows, grade 4 flexion power and grade 3 extension power have been retained but there is some muscle wasting.

16. His hands and fingers have very limited grade 1 power giving no useful function. The fingers are all held at a slightly flexed position and sensation is grossly diminished. There is also marked muscle wasting. He has also hyperpathia which is abnormal exaggerated response to painful stimuli over the whole of the upper limbs area.

17. His neck suffers from limited range of motion for flexion, extension as well as rotation on both sides. Normal sensation is retained but there is persistent pain and stiffness.

18. As for his head, he suffers from occasional right parietal headache.

19. The 3rd plaintiff also has impairment of higher mental functions including retardation of thinking process and memory and in particular short term memory.

20. In so far as his psychological state is concerned, he was a loud, quick and explosive character before the accident, but that has radically changed since his confinement to a wheelchair resulting in his feeling of frustration at his confinement and dependence.

21. He is assessed to be emotionally stable and free from mental disorder. He is said to be coping well with his loss of his sense of potency and efficacy except for occasional signs of helplessness, frustration, irritability and anxiety. However, although he appeared to be optimistic and coping well when assessed by Dr Anita Leung, a registered psychologist, Dr Leung states that fluctuation in his psycho-emotional state can be expected when he encounters disappointment, further frustration and stress in his daily living.

22. Cosmetics wise, the 3rd plaintiff has the following scars as a result of the accident :

(a) a 6 cm long C-shaped scar on his left parietal scalp;

(b) a 4 x 1.5 cm tracheostomy scar above the sternum;

(c) a depressed scar 9 cm in diameter over the sacral region;

(d) a dorsal scar 1 cm in diameter over the left foot;

(e) a dorsal scar 2.5 cm in diameter over the right foot;

(f) a scar on the right lateral malleolar ankle 1.5 cm in diameter.

23. By reason of these injuries and the resultant disability of the 3rd plaintiff, he is now wheelchair bound for the rest of his life as an incomplete quadriplegic (also referred to as an incomplete tetraplegic).

24. What have been stated above relating to the 3rd plaintiff's injuries, treatment and disabilities are not in dispute between the parties.

PAIN SUFFERING AND LOSS OF AMENITIES

25. There can be little doubt that the 3rd plaintiff in this case fall into the "Disaster" category of injuries as it is understood in the case of Lee Ting Lam. That said, I did note that when giving evidence, the 3rd plaintiff was able to have some slight use of his hands and was able to stretch it over his head. From the coherent nature of his evidence given from the witness box (albeit that he was still in his wheelchair) it is apparent that there is no great mental impairment suffered by him from this accident.

26. In Leung On v. Chan Pui Ki [1996] 2 HKC 54 five judges of the Court of Appeal laid down guidelines for award of general damages for pain and suffering. The awards for "Disaster" category was put at upwards of $1 million. That was in 1996.

27. In Ng Kwok Wing v. Lau Ping Kwan & Ors. [1996] 4 HKC 667, Cheung J (as he then was) awarded $1.5 million general damages to the plaintiff there, a paraplegic who fell within the top range of the gross disability category.

28. In Choi Mei Ho v. Chung Chiu Ying & Ors. [1997] 2 HKC 706, $1.5 million was awarded to a plaintiff with disabilities very similar to those of Mr Ng Kwok Wing.

29. In Ta Xuong v. Incorporated Owners of Sun Hing Estate [1997] 4 HKC 171 the plaintiff, a quadraplegic who has no upper body mobility whatever with the exception of his head, was awarded $2 million for pain, suffering and loss of amenities. There the plaintiff was 31 years of age at the time of the accident and 37 at trial. (N.B. It should be noted that the headnotes of that case wrongly states the plaintiff to be 37 at the time of the accident. That becomes clear in the judgment itself)

30. I shall use these awards as a starting point for assessing the appropriate damages under this head of claim.

31. Admittedly the injuries and disability of Mr Ta Xuong was more severe than those of the 3rd plaintiff in the present case. However, it is also true that the 3rd plaintiff is some 12 years younger as compared with Mr Ta when the accident happened to each of them and will therefore have to suffer and endure his present condition that much longer assuming a normal life expectancy for both.

32. I also note that there is no evidence before me of inflation since 1997, when Ta Xuong's case was decided, which would call for any upward adjustment of awards given since then.

33. Based therefore on his medical conditions as already stated and all the factors I have referred to, I am of the view that an award of $1.8 million would be a proper award to the 3rd plaintiff under this head of claim.

PRE-TRIAL LOSSES

Loss of earnings

34. There is no dispute that the 3rd plaintiff started to work as a glazier apprentice in Sing Lung Curtain Wall Engineering Co. in January 1997. His monthly salary was $9,500. The accident took place in mid-April 1997.

35. The 3rd plaintiff's own evidence was that if he was diligent, it would take a further one to two years for him to become a master, and that he did not know when he could earn more. In the light of that evidence, the 3rd plaintiff would not have become a skilled glazier before July 1998. From the Census and Statistics Department figures given for Average Daily Wages of Workers Engaged in Government Projects, the average daily wage for a skilled glazier (taking the figures between 1998 and 2001) is $829. The equation is therefore :

As apprentice	-	$9,500 x 14.5 months	=	$137,750
As skilled glazier	-	$829 x 26days x 38.5 months	=	$829,829
		Total:		$967,579

Medical Expenses

36. Under this head of claim, $27,608 claimed for hospitalization and $16,800 for western medicine is agreed by the defendant and will be allowed.

37. The only item in dispute between the parties is a claim of $127,400 for Chinese doctor, herbalist and bonesetter fees and for Chinese medicine. That amount claimed can be conveniently divided up as being $95,200 for Chinese doctor, herbalist and bonesetter fees and $32,200 being for Chinese medicine.

38. The evidence from the 3rd plaintiff is that he felt better after receiving the acupuncture and consuming the Chinese medicine. Evidence came from his father as to the amount spent for the Chinese doctor, herbalist and bonesetter as well as what was spent for Chinese medicine. His oral evidence of what is spent is consistent with the amounts claimed. However, the documentary evidence or receipts produced only support $17,054 as being paid to Chinese herbalist and $8,400 for acupuncture.

39. In the case of Yu Ki v. Chin Kit Lam [1981] HKLR 419, Roberts C.J. said at page 422B :

"I do not think that the plaintiff, whether he is claiming recompense for the cost of treatment by conventional medicine or by Chinese medicine, must show that the treatment was 'beneficial'. It is sufficient, in my view, if it is established that the cost of treatment was reasonable, that the plaintiff had some faith in its possible efficacy and the money claimed was in fact spent."

40. From these words it is clear that what must be shown by the plaintiff is the cost of the treatment is reasonable and the amount claimed was in fact spent.

41. In so far as reasonableness is concerned, the fees for Chinese doctor, herbalist, and bonesetter as well as the cost of Chinese medicine overlap with the conventional western medicine and treatment which the plaintiff was receiving. The amount claimed far exceed the cost of the conventional western medicine and treatment. In those circumstances, the 3rd plaintiff has not succeeded in showing reasonableness.

42. As to whether the amount claimed was in fact spent, the receipts produced support the sum of only $25,454.

43. In all these circumstances, it is hardly surprising that the defendant concedes an amount of only $30,000. In view of that concession and for the reason stated above, the amount of $30,000 will be awarded for the cost of Chinese doctor, herbalist and bonesetter as well as for Chinese medicine.

44. Accordingly, the total claim for medical expenses comes to $74,408.

Value of services by family and domestic helper

45. The unchallenged evidence before me was that during the 22 months when the 3rd plaintiff was in hospital one or other of his family members stayed with him at the hospital up to 10 hours a day. After the 3rd plaintiff and was discharged home, and for the 8 1/2 months before a maid was found to take care of him, this task again fell on the family.

46. I am satisfied that the claim for the value of those services by the family at $8,000 per month during the hospitalization period and at $12,000 per month for the first 8 1/2 months after discharge and before a maid was found is entirely reasonable.

47. For the 23 months from the time a domestic helper was engaged to date, I shall adopt an annual figure of $80,000 which is all inclusive of salary, relief cost, miscellaneous and food expenses, holiday expenses for the maid and agency charges.

48. Based on the above, I come to the total figure of $440,917 for the amount of the claim under this head.

Transportation

49. The claim under this head is for $100,000 being travelling expenses of the family members to and from hospital during the hospitalization of the 3rd plaintiff. There is also a claim for $93,800 as being the 3rd plaintiff's own travelling expenses for attending medical treatment ($16,800) and for attending other social activities ($77,000).

50. Although the defendant in final submission seeks to challenge the claim of $100,000 being the travelling expenses of the family members going to and from the hospital during the 3rd plaintiff's hospitalization, that amount has been admitted in the defendant's Answer to the Statement of Damages. In the circumstances, it would be quite unfair to allow the defendants to challenge it at final submission since the 3rd plaintiff would not have adduced any evidence to support that claim in reliance on that admission. Accordingly I shall allow that amount of $100,000 as admitted by the defendant.

51. As for the 3rd plaintiff's own travelling expenses for medical treatment and other social activities, the defendant is prepared to concede that claim at $2,500 per month. In my view that is not unreasonable. I have arrived at this conclusion on the basis that the total receipts which the 3rd plaintiff has been able to produce in relation to his using the Rehabus service comes to only $4,787, but those receipts only relate to a period of seven months from February to September 1998. I accept also that Rehabus is not the only transportation expenses which the 3rd plaintiff will have to pay for. Looked at globally therefore, I accept that $2,500 per month is a reasonable amount for this purpose. For the 31 months since his discharge from hospital it would give the figure of $77,500.

52. The total amount of travelling expenses comes to $177,500.

Miscellaneous Costs and Expenses

53. The majority of the items (1 to 29) claimed under this head are agreed.

54. The dispute between the parties is a minor one. The only difference between them is that for item 30, being a claim for extra cost of electricity, water and toilet paper, the 3rd plaintiff claims $2,000 per month whereas the defendant $500 per month is sufficient.

55. In my view this being a claim for "extra" cost of those items referred to, I am unable to see how such 'extra' cost can exceed the $500 per month conceded by the defendant.

56. Accordingly this head of claim is assessed at $146,654.

Tonic and Nourishing Food

57. The claim under this head is for $276,000 based on $7,500 being expanded per month to supplement the diet of the 3rd plaintiff for therapeutic, nutritional and cultural reasons.

58. Documentary evidence produced only support the amount of $22,365. There is also the evidence of the father that the 3rd plaintiff have been fed a diet of variously ginseng, antlers, birds nest, fish maw and other nutritious food.

59. Whilst I accept that receipts may not be available for some of the nutritious food bought, as for instance those bought in the market, and also the fact that with the kind of caring family the 3rd plaintiff has who will see to it that he is given extra nutrition for his welfare in the light of the severity of his injuries, however, it is still a cardinal principle in our laws that the amount spent on extra diet must be reasonable.

60. In my view, $7,500 per month for the whole pre-trial period is not an insignificant amount and in the absence of any evidence from a qualified person that such amount was necessary, it is far beyond what is reasonable. In this context, I am prepared to only allow the claim under this head on the basis of $1,500 per month which works out to be about $350 per week, and only because of the severity of the injuries.

61. Accordingly, for the 53 weeks since the accident, the claim comes to $79,500.

62. I note also that the defendant was prepared to concede $20,000 on this head of claim, no doubt based on the evidence of the 3rd plaintiff when he said he estimated the nourishing food taken by him to cost about $20,000. In my view, that concession is far too low and the 3rd plaintiff's evidence as to the amount spent was no more than an estimate - possibly a very poor estimate at that.

Cost of adaptation

63. The evidence adduced in this case shows that the family of the 3rd plaintiff moved from Sha Kok Estate to Wo Che in about late 1998 or early 1999 before the 3rd plaintiff was discharged from hospital. The reason for the move was that the flat at Sha Kok (330 sq ft) would be too small to accommodate the 3rd plaintiff when he was discharged from hospital therefore the father applied for a slightly larger flat in Wo Che which was 500 sq ft.

64. The father also gave evidence that decoration works had to be done to the new premises before the family could move in. These decorations included knocking down the wall/shutter windows partition originally separating the living room from the balcony; the changing of the iron bars on the balcony to aluminium windows; the alterations done to the doorway and complete rebuilding of the interior of the toilet so that it could be used by the 3rd plaintiff in his condition; the retiling and repainting of the whole premises and the repurchase of all household electrical appliances. The total cost of all this came to between $200,000 and $300,000.

65. As a result of such a move from Wo Che to Sha Kok Estate, they had to pay a higher rent, the differential of which is $737 per month.

66. I accept that the move to larger premises was necessitated as a result of the injuries to the 3rd plaintiff and in that way, the amount of the decorations and purchase being within reasonable limits, I should not go into the individual items to ascertain whether they resulted from the 3rd plaintiff's injuries or his condition. I will take the lower end of the figure given for the decorations and purchase, i.e. $200,000.

67. I will also make allowance for the higher rent resulting from this move. At 33 months to date it comes to $24,321.

68. The total amount assessed under this head is therefore $224,321.

FUTURE LOSSES

Multipliers

69. The 3rd plaintiff is now 24. In a report given on 1 August 2000, Dr Yu Yuk Ling estimated the life expectancy of the 3rd plaintiff to be about 30.5 to 34.3 additional years from his then age of 23. That estimate was arrived at with reference to the Whiteneck Paper which provides data on life expectancy with a classification according to the level of spinal cord injury and severity. In the case of the 3rd plaintiff Table 14-3 applied since he had sustained trauma of C5-8 segment with Frankel grade ABC.

70. However, in a subsequent letter dated 11 June 2001, Dr Yu amended that part of his August 2000 report to say that the estimate of the 3rd plaintiff's life expectancy should correctly be 34.3 to 38.6 additional years from age 23.

71. I have also taken note of the multipliers adopted in other decided cases in Hong Kong. In particular, in Ta Xuong v. Incorporated Owners of Sun Hing Estate [1997] 4 HKC 171, Seagroatt J used a multiplier of 16 for loss of future earnings on the basis that the plaintiff (aged 37 at trial) in that case would probably have established himself as an independent contractor well before retirement and may well have worked beyond age 65. The judge then used a multiplier of 18 for life expenses on the basis that that plaintiff had a life expectancy of at least 30.

72. In Choi Mei Ho v. Chung Chiu Ying [1997] 2 HKC 706, Leong J (as he then was) used a conventional multiplier of 10 for loss of future earnings and a multiplier of 12 for life expenses in respect of a female plaintiff 46 years at the time of trial. The multiplier of 12 for life expenses was chosen on the basis of her life expectancy of 29 in that case.

73. In the case of Cunningham v. Camberwell Health Authority [1990] 2 Med L R 49, Mustill LJ said at page 53 :

"What happens in practice is that the judge adopts an intuitive process buttressed by reference to previously decided cases. These cases partly operate as reference points whose features are compared with those of the case under consideration and partly from the basis of a general climate of opinion on the proper multiplier in a particular type of case with which a judge of long experience in the field will be entirely familiar. But it must be observed that these previous cases themselves must ultimately be intuitive in origin."

74. There is here a dispute between the parties as to the multipliers which should be adopted in the present case. The 3rd plaintiff says 19 and 21 while the defendant says 15 and 19, in both cases for loss of future earnings and life expenses respectively.

75. Doing the best I can in the present case, in all the circumstances, I am of the view that an appropriate multiplier for future expenses would be 19. As for future loss of earnings I shall use the conventional multiplier of 16.

Loss of earnings

76. The latest available figures at the trial from the Census and Statistics Department shows that in March 2001, the daily wages for skilled glaziers to be $861. However, the average for the first three months of 2001 gives the figure of $849; the average for the six months from October 2000 to March 2001 is $848.

77. Given that these figures do vary or fluctuate somewhat, $849 is probably a fairer figure to take than $861 as the basis for the multiplicand. There is no dispute that on average the 3rd plaintiff would probably have worked 26 days in a month.

78. Future loss of earnings therefore comes to :

$849 x 26 x 12 x 16 = $4,238,208

79. To that amount I shall add a further 5% (i.e. $211,910) to take account of the loss of MPF. The final figure comes to $4,450,118.

Future medical care

i) Neurological

80. The annual amounts required of $1,400 for medical consultations, $6,000 for medication and $1,500 for out patient consultation and treatment for complications - totalling $8,900 - are agreed. The parties are not agreed only on the multiplier. I have already indicated above that I shall be using 19 as the multiplier for future expenses. On that basis the cost for future neurological treatment and medication comes to $169,100.

81. The 3rd plaintiff further claims the sum of $20,000 per annum for being admitted to a private hospital in case future complications should develop as advised by Dr Yu. This alone works out at $440,000.

82. The defendant takes the stance that if such complications do develop in future the 3rd plaintiff could be admitted to a public hospital and it is unreasonable to provide such a relatively large sum for such contingency. The defendant is prepared to offer $50,000.

83. I agree with the stance taken by the defendant. $50,000 in my view is sufficient to take care of that possibility should it arise.

ii) Urological

84. The parties are agreed that $80,000 be provided for Ileal Conduit operation or sphincterotomy.

85. The parties are also agreed that, in the light of the advice by Dr George Koo in his supplemental report, the following annual sums are necessary, namely, $4,000 for urodynamic study, $4,000 for ultrasound and $3,200 for consultations. Again they differ only on the multiplier. Once again I shall use 19 as multiplier.

86. The total comes to $292,800.

iii) Orthopaedic and Physiotherapy

87. I accept that an annual cost of $3,000 for bracing and $3,200 for consultations claimed by the 3rd plaintiff to be reasonable. For both of them I shall use 19 as the multiplier.

88. I also allow the claims for spinal fusion and tendon transfer in the lump sum amounts of $120,000 and $80,000. These are clearly necessary in the light of the 3rd plaintiff's scoliosis.

89. The 3rd plaintiff also claims an amount of $407,450 for physiotherapy as recommended by Mr Siu. Accepting that in his condition, physiotherapy will be a regular ongoing treatment for the 3rd plaintiff and necessary, I shall allow that in full.

90. The total for the cost of orthopaedic and physiotherapy treatment therefore comes to $725,250.

iv) Psychological

91. The amount claimed for psychological treatment in the sum of $97,000 is agreed and will be allowed.

92. The total cost of future medical care therefore comes to $1,334,150.

Nursing care and case manager

93. Initially under this head of claim the 3rd plaintiff's claim was for an amount of over $8 million which was based on employing a 12-hour nightshift care assistant, a part time day shift health care assistant, one full-time domestic helper and one driver. In addition the 3rd plaintiff was also claiming an annual sum of $60,000 for the value of the services which the family will continue to render.

94. In final submission however, the claim under this head has been drastically whittled down. This claim is now put on the basis of an alternative regime, namely, a 12-hour day shift health care assistant and a 12-hour nightshift care assistant. For this alternative regime, the plaintiff claims $7,665,000.

95. The 3rd plaintiff also claims for a case manager at an annual cost of $4,800.

96. The defendant on the other hand, while accepting the need for a day time health care assistant, submits that there is really no necessity for a nightshift care assistant, but instead a domestic helper should be engaged to basically take care of the 3rd plaintiff's nighttime needs and to rest in the daytime while there is a health care assistant. On that basis defendant is prepared to offer the sum of $5,078,600 which is inclusive of the nursing care, domestic helper and case manager.

97. Basically I find myself in agreement by and large with the suggestion of the defendant, in particular with the submission that there is no great need for a night shift care assistant. I take this view in light of the evidence that the main needs of the 3rd plaintiff at night is to be turned when sleeping, to adjust his splintage and to drain his urinal. These can well be carried out by a domestic helper who is specifically instructed as to what is needed to be done.

98. Having said that, I am not entirely certain that the domestic helper will be able to rest for the whole of the daytime so as to be awake the entirety of the night. What would likely happen is that her rest at night will be truncated by her night duties and that she will have to make up for it by getting some rest during part of the day. Obviously suitable arrangements will have to be made in engaging such a domestic helper, and therefore one willing to accept such arrangement will have to be found, possibly at a higher salary.

99. The suggested cost by the defendant for the domestic helper is based on an annual cost of $70,000. I would increase that annual cost by a further sum of $15,000 for the reason given above. It comes to $1,615,000.

100. As for the daytime health care assistant, I accept the defendant's figure of $3,689,800. As for the case manager, I accept the annual cost of $4,800 as suggested by the 3rd plaintiff but using 19 as multiplier, it comes to $91,200.

101. The total amount assessed under this head comes to $5,396,000.

Alternative accomodation

102. The defendant accepts that the 3rd plaintiff should have alternative accommodation which meets the conditions prescribed by Ms Flora Lee. Ms Lee has already ruled out City One Shatin and Pictorial Garden as unsuitable. I need not go into those reasons in detail save to say that valid reasons have been given.

103. As for the other two remaining possibilities, Royal Ascot is cheaper than New Town Plaza. Both are suitable according to Ms Lee. It is also common ground between the parties that purchase of a flat would be cheaper than to rent given the circumstances of this case.

104. Ms Lee has further advised that for safety reasons, the lower the floor the more suitable it is for the 3rd plaintiff's requirements.

105. From all the figures supplied, I am satisfied that the sum of $4 million (as offered by the defendant) would be an adequate figure to purchase a lower floor flat of about 11,000 sq ft in Royal Ascot. From this amount of $4 million must first be deducted the future rental of the current accommodation at Sha Kok Estate (i.e. $2,187 per month) :

$4 million - ($2,187 x 12 x 19) = $3,501,364

106. Secondly, the applicable principle of law requires that the damages to be awarded in respect of the purchase of special accommodation should not be the net capital cost of the purchase but the additional annual costs over the plaintiff's lifetime of providing that accommodation. (see Ng Kwok Wing v. Lau Ping Kwan [1996] 4 HKC 667 applying Roberts v. Johnstone [1989] QB 878).

107. In calculating the annual cost, I accept the figure of 4.5% suggested by the defendant to be the real return on investment. Applying that to the above figure of $3,501,364 it gives the annual cost to be $157,561. Using the multiplier of 19 on the annual cost I come to the figure of $3 million rounded off.

108. In addition to that figure, the 3rd plaintiff is entitled to estate agent's fee of say 1% on the purchase price of $4 million, stamp duty which would come to $90,000 under the present scale and also the cost of adaptation, a reasonable sum for which I assess to be $200,000.

109. Taking in the additional items, I arrive at the final figure of $3,330,000 which is the amount assessed under this head.

Future transportation costs

110. Under this head of claim, the 3rd plaintiff initially claimed an amount of over $5 million on pleadings. In final submission this claim has been revised down to an amount of $1,567,525 as being the cost for an adapted van together with other miscellaneous expenses relating thereto.

111. The defendant on the other hand concedes an amount of $684,000 to be the reasonable and necessary costs of transportation which amount is based on a monthly transportation expenses of $3,000 be it by Rehabus or taxi or a combination of both.

112. The first issue which I have to resolve therefore is whether or not on all the evidence before me the 3rd plaintiff is entitled to claim for the cost of an adapted van, or whether, as submitted by the defendant, that becomes a luxury and not a reasonable necessity.

113. The 3rd plaintiff's arguments for an adapted van goes along the following lines. Firstly, the 3rd plaintiff relies on the recommendation of Ms Flora Lee who in her supplemental report has put forward an alternative regime in which the 12-hour day shift health care assistant has a driving licence who can then double up as a driver for the 3rd plaintiff in the daytime.

114. Secondly, apart from taxis, all other forms of public transport are out for the 3rd plaintiff. Even taxis are at best highly inconvenient, at worst unsafe, for the 3rd plaintiff because it needs at least two persons relatively strong enough to lift the 3rd plaintiff into and out of the taxi. The other only alternative left if an adapted van is not allowed is to rely on the Rehabus service which is not always available because of the very large excess of demand over supply for that service.

115. Thirdly, the 3rd plaintiff has given evidence of his desire to take part in much more activities, sporting, social and educational but which at the moment he is restricted from undertaking because of his limitations in mobility. The provision of an adapted van will overcome those limitations.

116. If not for the accident, the 3rd plaintiff is an outgoing young man full of life and the accident has deprived him of that life. An adapted van is but one of the many compensation which he is entitled to for the injury he has suffered.

117. On the other hand, the defendant submits that firstly, the 3rd plaintiff's family have all been using public transport before the accident. There is no evidence that the 3rd plaintiff intended to drive or to buy a car. This differentiates it from the case of Ta Xuong where the cost of a car was allowed when the learned judge said in that case :

"I am satisfied that by now, he would, had he not suffered the accident, have purchased a motor car for family use."

118. Secondly, the 3rd plaintiff's own evidence is that he spends about 16 hours a day on the Internet. His present hobbies are watching TV, listening to the radio and playing with the computer as well as doing exercise. He spends most of his time at home, going out mainly to attend classes in the evenings. His evidence that he intends to participate in more sports such as table tennis and swimming could well be undertaken when he moves into Royal Ascot where there is a clubhouse with very good facilities including an in-door heated swimming pool. Apart from the clubhouse facilities there are also gardens, podiums, restaurants and shopping complex at Royal Ascot where the 3rd plaintiff can go or meet with his friends without any need for an adapted van. He will also have the benefit of the daytime health care assistant.

119. Thirdly, the 3rd plaintiff said in evidence that he attended evening courses three times a week for over 18 months by using the Dial-a-Ride service of the Rehabus which is exclusive in nature. Accepting that at times there will be difficulties in booking, nevertheless, the defendants submits that the evidence shows the Dial-a-Ride service is in relation to fixed arrangements to attend school or work and is feasible, suitable and adequate for such regular and pre-planned activities.

120. Fourthly there is also the evidence that the 3rd plaintiff has for half a year since the end of 2000 been able to take a taxi from his home in Shatin to Tsuen Wan to visit the bonesetter accompanied by his father and another family member. Therefore on the rare occasions when he cannot book the Rehabus service for use, there is no reason why he cannot travel by taxi even if that should be not as convenient.

121. In all the circumstances, the defendant submits that to allow the cost of a car and a driver is a luxury rather than a reasonable necessity. Rather Rehabus supplemented by the occasional taxi journey should provide a reasonably adequate mode of transport to cater to the 3rd plaintiff's future needs.

122. On this issue I find myself in agreement with the submission made by the defendant. The test is not whether it is more convenient but whether it is reasonably necessary. The reasonableness and convenience to the 3rd plaintiff must be weighed against the reasonableness of the cost which the defendant has to pay. In so doing, I have come to the conclusion that it would not be reasonable to allow for the cost of an adapted van for the 3rd plaintiff's use when there is adequate modes of transport services which he can make use of in the form of Rehabus and to a lesser extent taxis.

123. In so far as the amount is concerned, the 3rd plaintiff's own evidence is that the average monthly travelling expenses is $2,500 to $3,000 since his discharge from hospital. The defendant's offer is based on the upper figure so given i.e. $3,000 and applying the same multiplier of 19 that gives an amount of $684,000.

124. That amount offered by the defendant appears to be a reasonable sum for the claim under this head and that amount will be awarded.

Medical aids, equipment and consumables

125. There are 35 items set out in the 3rd plaintiff's schedule of damages. Of these items only four items (infra red thermometer (item 6), special pillow (item 8), electric blanket (item 17) and Mini Hi-fi (item 19)) which are disputed by the defendant as being unrelated to the 3rd plaintiff's condition.

126. I accept that the Mini Hi-fi is such a popular household item in Hong Kong today that it would necessarily be a part of the 3rd plaintiff's home even if this accident had not taken place. As such I will disallow the claim for that item.

127. As for the other three disputed items, I will allow them as they have been recommended by Ms Flora Lee and it appears that they will have a part to play in ensuring the reasonable comfort of the 3rd plaintiff in his present condition.

128. The second matter is that having decided to use a life multiplier of 19, I accept the defendant's contention that 19 be retained for items which has to be changed annually; a multiplier of 8 be used for items to be changed every two years; multiplier of 3 be used for items changed every five years and a multiplier of 17 be used for items with service free for the first year of purchase.

129. Adding back the three items objected to by the defendant but which I have allowed to the figure offered by the defendant, I make the final amount under this head to be $1,376,440.

Recurrent extra household expenses

130. As already stated above, I am unable to see how the "extra" expenses for electricity, water and toilet paper could be at $2000 per month. In my view $500 per month as offered by the defendant is reasonable. Applying 19 as the multiplier the figure comes to $114,000.

Extra cost of holiday

131. The evidence in this case is that the 3rd plaintiff had travelled to China two or three times a year before his accident to visit his relatives and for sightseeing. There is no evidence that he has been to other places apart from China. There is no evidence where in China he had gone to or the cost of those previous trips.

132. Accepting that the 3rd plaintiff to have always been interested in taking trips abroad but was constrained by his low income before the accident, nevertheless it remains a principle of law that the cost of the plaintiff's holiday is not recoverable. It is only the additional cost of the holiday due to his injuries which is a recognised head of damage and it is only that additional cost which is recoverable.

133. The claim by the 3rd plaintiff is for $735,000 which is based on an annual sum of $35,000. However there is scant evidence as to the annual amount claimed or for that matter the frequency of the holidays. The defendant is prepared to offer only $50,000.

134. In the condition that the 3rd plaintiff is in, I do not subscribe to the view that he would be travelling abroad with any kind of frequency. In the absence of more substantial evidence, I am only prepared to allow $10,000 as being the extra cost of a holiday every two years. Using a multiplier of 8 the total amount under this head comes to $80,000.

COST OF FUND MANAGER

135. 10% of the fund to be managed (i.e. the loss of future earnings) has been the approach adopted in Leung On v. Chan Pui Ki [1996] 2 HKC 565; Choi Mei Ho v. Chung Chiu Ying [1997] 2 HKC 706 and Lai Chi Pon v Toto Steel & Iron Works Ltd. [1997] 2 HKC 741 in calculating the amount to be awarded for the cost of a fund manager.

136. I note the plaintiff's submissions on the amount claimed for the cost of a fund manager is based upon a different formula adopted by Seagroatt J in Ta Xuong's case which was decided after the cases referred to above.

137. In the light of there being two different approaches in calculating the amount to be awarded for the cost of a fund manager, I shall adopt that approach which has been used in Leung On's case by a five member Court of Appeal and followed in two later cases, despite the plaintiff's arguments to the contrary. The cost of the fund manager therefore is assessed at 10% of the loss of future earnings which comes to $445,012.

INTERESTS

138. Interests will be awarded for general damages for pain suffering and loss of amenities at 2% per annum from the date of the Writ.

139. Interests will also be awarded for all pre-trials losses/expenses at half judgment rate from the date of the accident.

SUMMARY OF ASSESSMENT

140. Accordingly, there will be judgment to the 3rd plaintiff in the assessed amount of $21,730,982.

COSTS

141. There will be a costs order nisi that the costs of the assessment be borne by the defendant to be taxed if not agreed. The 3rd plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.