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HCA002823/1983
1983 No. 2823
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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BETWEEN
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LAU SUN KIU |
Plaintiff |
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AND
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LEUNG CHAN FAI
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1st Defendant |
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CHAN PAK CHEONG |
2nd Defendant |
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Coram: Master Suttill in Chambers
Date of Hearing: 9 January 1986
Date of Delivery: 6 February 1986
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ASSESSMENT OF DAMAGES
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1. The plaintiff, Lau Sun Kiu, is now 49 years old. She is a married woman living with her daughter, Lee Ping Kin. The plaintiff's husband ceased to live with her immediately after her accident and, apart from supplying her with a place to live, has no contact whatsoever with her.
2. The accident to which I refer took place on 23rd February 1981. It happened on Castle Peak Road as the plaintiff was about to cross it from east to west when she was struck by a motor car AZ6523. That car was owned by the 2nd defendant and driven by the 1st defendant in the course of his employment therewith.
3. The writ of summons was issued on 10th March 1983. On 17th May 1983 interlocutory judgment with damages to be assessed was obtained against the 1st defendant, no intention to defend having been filed.
4. On the 20th September 1985 the action was discontinued as against the 2nd defendant.
5. The assessment of damages was before me on the 9th January 1986. The 1st defendant was not present.
6. The plaintiff was taken from the scene of the accident to Princess Mary Hospital (P. H.H.).
7. Dr. S. K. Chow of that hospital had this to say about her treatment there :-
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" (The plaintiff)..... was admitted to surgical 'A' unit P. M.H.
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She had transient loss of consciousness and had quadriparalysis and retention of urine. X-ray showed fracture of right fibular head, fractures of superior and inferior rami on the right side and superior ramus on the left side of the pelvis, fracture of right acetabulum, and query fracture of 1st cervical spine.
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She was transferred from surgical ward to orthopaedic ward on 24.2.81 for management of her orthopaedic problems.
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She was given skull tong traction for 4 weeks. She had recovery of motor power to grade 2-grade 3. She was transferred to Margaret Trench Rehabilitation Centre for physiotherapy on 8.6.81." |
8. While the plaintiff was in the Lady Trench Centre partial recovery of motor power in the limbs occurred gradually. She was discharged from there after about 9 months.
9. On the 16th September 1985 the plaintiff was examined by Dr. P.A.L. Horsfall. His examination showed weakness and spasticity in all four limbs but some power was also present in all. Sensation was diminished but not absent. Mentally the plaintiff appeared to be of normal intelligence and stable personality. Her speech was also normal. She was able with great difficulty to stand and shuffle a few steps. There were no skin ulcers or oedema (swelling of the legs) (she could move around sufficiently to prevent these complications).
10. The plaintiffs daughter gave evidence before me confirming the matters told to Dr. Horsfall regarding the plaintiff's present condition.
11. According to her the plaintiff now spends most of the day in her wheelchair. She is able to raise hereself out of the chair and to walk a few steps with the aid of a tripod walking support. She is also able to crawl up stairs. She can feed hereself and even prepare simple meals. However, she is unable to propel the wheelchair, to bath herself or to get into and out of bed unaided. She has partial but not good control over bowel actions and micturition and needs to wear napkins. Dr. Horsfall also remarks that there is no prospect of the plaintiff ever being fit to take up gainful employment.
12. Damages, interest and costs are claimed as follow :-
1. Pain suffering and loss of amenities
I was referred to
Lee Ting-lam v. Leung Kam-ming [1980] HKLR 657 C.A. where, at page 660, Cons. J.A. describes the "disaster" category of injury in the following terms :-
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" This is where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children.
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Awards are from $150,000 upwards. We should add that in (this category) additional awards can be expected to cover nursing or other attendant care." |
I have no difficulty in placing the plaintiff in the disaster category so described by Cons. J.A.
Miss Mok has properly conceded that the plaintiff falls within the opening remarks of Cons. J.A. rather than the "living cabbage" description. Nevertheless her condition is acutely distressing to her and, according to her daughter, has on several occasions induced her to thoughts of suicide.
Therefore taking Lee Ting-lam as a starting point, making allowance for the changed purchasing power of money since then (see Chan Wai-tong v. Li Ping-sum [1985] HKLR 176, P.C.) and allowing an average of 10% per annum increase thereon, I assess damages under this head at $330,000.
2. Past loss of earnings (i.e. from the date of accident to the date of the of the assessment).
Prior to the accident the plaintiff was a construction site worker with Gammon (H.K.). The personnel officer of that company gave evidence in the assessment. He was Mr. P.C. Wong.
The annual earnings of the plaintiff from 12.12.1979 to 11.12.80 were $24,806.70 and so her average monthly earnings were $2,067.22 therefore:
loss of earnings 23.2.81 to 31.3.81 = $2,584.02
According to Mr. Wong during the period 1.4.81 to 31.3.82 a similar daily paid worker would have earned $25,608.00 therefore
loss of earnings 1.4.81 to 81.3.82=?25,608.00
In the ensuing years the daily paid workers of Gammon enjoyed annual increases in take-home-pay and based thereon the plaintiff's estimated total earnings can be calculated as follows:
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1.4.82-31.3.83 |
$ 28,066.36 |
+9.6% |
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1.4.83-31.3.84 |
$ 30,249.92 |
+7.78% |
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1.4.84-31.3.85 |
$ 31,341.94 |
+3.61% |
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1.4.85-31.12.85 |
$ 24,590.10 |
+4.61% (9 months) |
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1.1.86-9.1.86 |
$ 956.28 |
(9 days) |
Total pre-trial loss of earnings are therefore-$143,396.62.
3.Future loss of earnings
The plaintiff was 44 years old at the time of the accident and is now 49 years.
It is the evidence of her daughter that, prior to the accident, the plaintiff was in robust health and perfeetly capable both physically and mentally of holding down her job on the construction site.
Miss Mok has proposed a post trial multiplier of 10. After much consideration I am of the view that whilst that figure may represent an optimum limit on the plaintiff's working life it is by no means improbable or excessive and accordingly I adopt it.
Her current monthly earnings would be $2,732.23.
She would have enjoyed an average increase of 6.4% from 1981. Applying that (but not compounding it) I arrive at a multiplicand of $2,732.23 x 106% = $2,907.09.
Accordingly an award 15 is made under this head of
$2,907.09 x 120 =$348,850.80
4. Special damages
Various minor items of special damages are claimed and I am satisfied that they are fully borne out by the evidence of the plaintiff's daughter and the hearsay notice and I make awards as follows:
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PMH Expenses for plaintiff |
530.00
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Travelling expenses, Lee Ping Kin, daily |
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for 3 months to PMH @$8 |
720.00 |
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thrice weekly for 9 months to Lady Trench @$8
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720.00 |
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Damage to plaintiff's personal belongings |
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-watch |
$180.00 |
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ear rings |
$150.00 |
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clothing |
$100.00 |
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430.00
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| d) |
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Equipment needed by plaintiff |
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-wheelchair |
$1,600.00 |
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walking aid |
$ 300.00 |
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massage aid |
$ 300.00 |
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2,200.00
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| e) |
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Napkins, Foley's cathether, urine bag, Dettol; |
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$100 p.m. from March 1982 to date (46.35 |
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months)
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4,635.00 |
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Nutritious foods- |
5,000.00 |
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(Note-a substantial number of receipts were |
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produced but they do not account for the whole amount claimed. After careful consideration I accept Miss Mok's submission that a per diem amount is fairer as receipts form small items are unlikely to be kept.)
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g)
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Miscellaneous medical expenses relating to a recent development of swollen lower limbs |
630.00
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Total
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$14,865.00
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5. Future attendant care
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I now turn to consider the plaintiff's requirements in the future for care and attention consequent upon her being in the disaster category of injury.
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The plaintiff is 49 years old now. I think that under normal circumstances she could have expected to live a further 27 years. Assuming that her injuries will have shortened that expected span by 1/3rd, the assessments under the following heads will adopt a factor of 18.
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| b) |
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Domestic help |
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The care and attention presently received by the plaintiff is rendered by her daughter - a brare and dedicated person in my view. She is young and attractive and has evinced an intention to marry as soon as her mother can be taken care of by someone else. Her future husband, she tells me, has stated that he does not believe that they should live with the plaintiff once they are married. I understand and sympathise with this view.
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It follows that the plaintiff must be provided with other care to replace her daughter.
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Dr. Horsfall accepted the need for such help but concluded it need only be part-time. With respect I disagree. The plaintiff already spends long hours alone during which she dare not lie down for fear of being unable to raise herself without help. This will be exacerbated when her daughter marries and leave the home.
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The attendant must therefore be full time and live in the house where space, I am satisfied, is available.
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Mr. Leung Min-cheung from the Labour Department gave evidence that such a domestic helper would receive $2,500 p.m. She would also receive the customary bonus of double pay at Chinese New Year.
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Her average monthly carnings would therefore be $2,708.33.
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Appling the factor of 18 I award therefore:- |
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$2,708.33x216=$584,999.28 |
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Powered wheelchair |
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The plaintiff now has a hand propelled wheelchair. I saw it - she attended my chambers in it. It is past its best and needs replacement.
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Dr. Horsfall observed that the plaintiff can actually move the wheelchair slowly over short distances with great effort. After observing the plaintiff myself, I agree. What I do not agree with is his conclusion that the plaintiff would not be able to operate an ... illegible operated wheel-chair.
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Frankly I think she should be given the chance. Any aid that may restore some of her quality of life ought to be made available to her.
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According to Mr. Wong Wai Yam who is a representative in Hong Kong of the supplier of such wheelchairs they cost, in April 1985, $31,695 each.
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They have increased 10% in price since then.
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They last about 6 years before replacement is needed.
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They cost $320.00 p.a. to maintain.
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Applying again the factor of 18 I award
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$34,534.50 x 3 |
= $ 103,603.50
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plus $320.00 x 18 |
= $ 5,760.00
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$ 109,363.50
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d)
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Medical attention- |
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Dr. Horsfall canvasses the possibility that private medical attention may be required in respect of bi-annual inspections by a consultant and in respect of complications and inter-current illnesses.
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He foresees complications in transporting her to the out-patient department of P.N.H. and foresees the likelihood of private medical treatment. Therefore and in that event he estimates the cost at $8,000 p.a. for two weeks hospitalisation.
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I would repeat my remarks above concerning the restoration of some quality of life to the plaintiff and applying the factor of 18 award
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$8,000 x 18=$144,000.00
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e)
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Recurrent expenditure on dressings |
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The plaintiff's lack of control over her bowel actions and micturition will continue in the future. This will necessitate the continued use of napkins, catheter, urine bag, disinfectant and associated dressings.
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Expenditure on these itoms have been allowed at $100 per month and applying the factor of 18 thereto I award
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$100 x 216 = $21,600.00 |
6. Summary
The total award is summarised as follows :
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1.PSLA |
$ 330,000.00 |
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2. Past loss of earnings |
$ 143,396.62 |
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3. Future loss of earnings |
$ 348,850.80 |
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4. Special damages |
$ 14,865.00
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5. Future attendant care
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Domestic help |
584,999.28 |
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Wheelchair |
109,363.50 |
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Medical attention |
144,000.00 |
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Dressings |
21,600.00 |
$859,962.78 |
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$1,697,075.20 |
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7. Interest
There will be interest on the general damages at (1) above at 2% from the date of the writ until today, and on the special damages at (2), (3) and (4) at 4% from the date of the accident until today.
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Costs - There will be an order for the payment of the plaintiffs costs by the 1st defendant, to be taxed if not agreed. The plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations. |
13. There will be a certificate for counsel.
Representation:
Miss. A Mok instructed by the Director of Legal Aid, for the Plaintiff
Leung Chan Fai, 1st Defendant - Absent
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