LI XIAO YOU v. FUGRO GEOTECHNICAL SERVICES (HK) LTD & OTHERS

HCPI 1287/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES NO. 1287 OF 1999

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J U D G M E N T

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1. This is an assessment of damages in respect of injuries suffered by the plaintiff in an accident at work on 20 November 1996. The facts are set out in my judgment of 26 November 2001 after a hearing to determine the apportionment of liability between the 2nd and 3rd defendants, it being accepted that there was no liability as regards the 1st defendant, nor any contributory negligence on the part of the plaintiff. The 3rd defendant, Third Party, did not appear at the hearing of the assessment, the solicitors acting having recently come off the record. On the first day of the hearing, counsel for the plaintiff and the 1st defendant came to an agreement as to appropriate sums to be awarded under each head of damages, but as these cannot bind the 3rd defendant, I will consider them here, and if I consider them reasonable in the circumstances of this case, make an assessment accordingly.

2. Briefly the facts are that the plaintiff was employed by the 1st defendant at the site of the Mass Transit Railway Central Station as a geological surveying technician. On 20 November 1996 at about 1.00 pm, he was taking measurements with a colleague, when a number of plywood boards fell from a tower crane by which they were being transported across the site, one of which struck him and caused severe injuries. The 1st defendant, against whom proceedings have since been discontinued, was a sub-contractor of the 2nd defendant, the principal contractor on the site, and the 3rd defendant and third party was a further sub-contractor. Judgment was entered against the 2nd and 3rd defendants on 21 June 2001, with damages to be assessed, and trial of the issue as to apportionment of liability was ordered as between the 2nd and 3rd defendants. At that trial I found liability as to 60% against the 3rd defendant, and 40% against the 2nd defendant.

3. The plaintiff suffered severe injuries, principally to his back, where he sustained a fracture of the 5th thoracic vertebra and a burst fracture of the 12th thoracic vertebra, together with multiple rib fractures and haemopneumothorax, a small subarachnoid haemorrhage, and a right brachial plexus injury. He did not regain consciousness until five days later and spent a total of three months in Queen Mary Hospital, of which about one month was on mechanically assisted ventilation, followed by nine months at the Maclehose Medical Rehabilitation Centre. The injuries resulted in total paralysis of his lower limbs, loss of feeling from his nipples downwards, and weakness in his right upper arm. He is permanently wheelchair-bound and cannot stand or walk unaided.

4. The plaintiff is now 30 years old, having been born in Wu Hua, Guangdong Province, Mainland China on 4 October 1971. He came from a poor family but, through hard work and studies he gained entry to, and graduated from, the Geological Training College at Guangzhou and obtained a post at the Guangdong Province Earthquake Bureau. He had then commenced further study for a degree qualification in order to take up a higher position. This was interrupted by his posting to Hong Kong on a two year contract during which the accident happened, but he intended to resume it upon his return. The accident therefore ended the Plaintiff's chances of completing his university education and his prospects of marriage to a Ms Ye Li Hua (Yip Lai Fa), his steady girlfriend, and what would have been a successful life and career in Guangzhou and abroad.

5. The plaintiff, in addition to the paralysis of his lower limbs, also suffers some pain in his right shoulder, particularly when pushing his wheelchair along, and has to support himself when sitting without back support. He has some pain in his back and suffers involuntary spasms of the lower limbs. He is impotent and suffers both urinary and bowel incontinence. He has to use a catheter and suppositories to evacuate his bladder and bowels, the former resulting in frequent urinary tract infections. He also has some constriction in his chest and breathing difficulties on exertion. Nor surprisingly, he has some psychiatric disorders and depression which require counselling, but it is clear that he is a strong character who is making the most of what he has, and exhibits in his witness statement, which the parties accept as his evidence, a positive outlook. He is able to feed himself, but not cook, and can transfer himself in and out of his wheelchair, manoeuvre it on the flat, and bathe himself, although he often needs assistance when he is ill, and for some movements he finds difficult.

Pain suffering and loss of amenities

6. As I have already observed, the plaintiff has suffered devastating injuries for a young man, only 25 at the date of the accident, who had a bright future with prospects of a successful career, which would have put him among the privileged minority in China. He now has little expectation of any permanent personal relationship nor family of his own. In order to ensure proximity to suitable regular treatment, he has to live in Guangzhou, a long way from his family, including his elderly parents. The sum suggested by counsel for the plaintiff and the 2nd defendant by way of general damages is $1,700,000.00.

7. In Lai Chi Pon v. Toto Steel & Iron Works Ltd & ors [1997] 2 HKC 741, Cheung J awarded $1,500,000.00 to the plaintiff who had suffered similar injuries, and in Tse Lai Yin Lily & ors v Incorporated Owners of Albert House & ors HCPI 828 0f 1997 the damages were put at $1,800,000.00 by Suffiad J for a 44 year old plaintiff in a similar situation but with greater psychiatric problems. A more recent decision, in Chan Yuet Lui Rebecca v. The Ritz Carlton Ltd & ors HCPI 658 of 2000, placed the damages at $1,700,000.00 for a 31 year old paraplegic. The case before me clearly comes within the disaster category and, on the authorities referred to, I am satisfied that the sum suggested here of $1,700,000.00 is a proper figure to represent the loss which the plaintiff has suffered.

Loss of earnings

8. The plaintiff has clearly also suffered a total loss of earnings and has no realistic prospect of obtaining work in the future. The loss of earnings for the balance of the time he would have worked under his contract in Hong Kong can be calculated by multiplying the salary of $16,400.00 by the 5 months remaining after the accident, giving a total of $82,000.00. From 19 April 1997 to date of trial, a period of some 60 months, the evidence, which I accept, is that he would have earned between RMB6,000.00 and RMB9,000.00 a month on his return to his employment in China, giving a median of RMB7,500.00. Reducing this by 5% to reflect the present exchange rate with the Hong Kong dollar, which will also apply to all other RMB sums in this assessment, gives a figure of $427,500.00, and a total pre-trial of $509,500.00. The parties before me suggest a reduction to reflect liability for tax, and I agree with the resulting figure of $500,000.00.

9. As to future loss, the parties suggest a multiplier of 16, which again I consider reasonable. Applying this to present monthly earnings of RMB9,000.00 one arrives at a figure of $1,641,600.00, again allowing for the same exchange rate, and with a similar reduction for tax liability, this can be rounded down to $1,600,000.00.

Medical and other expenses

10. There have been inevitably a great number of expenses incurred by the plaintiff by way of medical expenses, purchase of medical requirements, transportation, accommodation and other expenses, which I do not propose to list in detail. The original claim was for a total pre-trial of $923,620.00. After detailed review by counsel of the items claimed, the 2nd defendant has conceded a total of $746,703.00, which I agree were all reasonably incurred by the plaintiff, and which sum I will award here.

11. It is also inevitable that the plaintiff will incur in future not only similar expenses on a regular basis, but also medical expenses including treatment by Chinese doctors and attendance at Chung Shan Hospital for emergencies such as urinary tract infections, regular check ups at Guangdong Province Medicine Hospital, regular follow ups in Hong Kong twice a year with physiotherapy reviews, occupational therapy, and psychological counselling. There will additionally be transportation costs associated with these. I agree with the parties that an appropriate multiplier to adopt for these is 18. The cost of this, which I accept, may be summarized as follows:

a.	Continuation of the stretching, vitamin injection and acupuncture by the Chinese doctor: RMB 1,500 a month, i.e. $(1,500 × 12 × 95%) = $17,100 a year × 18 = $307,800.00
b.	Attendance at Chung Shan Hospital for emergency such as urinary tract infections: RMB230 every 3 months = $(230 × 4 ×95%) = $874 a year × 18 = $15,732.00
c.	Regular examination at Guangdong Province Medicine Hospital: RMB1,500 every 3 months = $(1,500 × 4 × 95%) = $5,700 a year × 18 = $102,600.00
d.	Urological follow-ups in Hong Kong, including urine tests, urodynamic tests, kidney scans, etc: $8,800 a year × 18 = $158,400.00
e.	Physiotherapy review: $1,000 × 2 = $2,000 a year × 18 = $36,000.00
f.	Occupational therapy: $1,200 × 2 = $2,400 a year × 18 = $43,200.00
g.	Psychological Counselling: $90,000.00
h.	Transportation cost to and from Hong Kong: $3,000 × 2 × 18 = $108,000.00

Giving a total of $861,732.00.

12. The plaintiff presently employs a domestic helper and is assisted by his brother on a full-time basis. This has proved adequate and it is reasonable that it should continue. The cost of this is assessed at RMB1,200.00 a month times 13 months for the domestic helper, and RMB1,200.00 a month for the value of the brother's services, which with the same multiplier gives a total of $513,000.00.

13. The plaintiff also requires a considerable amount of equipment and aids to allow him to lead as normal a life as is possible in his situation, including wheelchairs, commode, grab rails and hoists, and numerous other items in addition to personal hygiene consumables. The cost of these I accept on the evidence will amount to a total of $1,388,513.00 over the same period. In addition, the parties have suggested, and I accept, a further 15% to allow for maintenance and replacement of these items. This gives total under this head of $1,596,790.00.

Transportation costs

14. The Plaintiff claims damages for future transportation costs based on the purchase and maintenance of a new private motor vehicle which would by driven by his brother or other companion. The parties have suggested that the multiplicand should be assessed by taking a sum of RMB240,000.00, being the median between the Plaintiff's claim for RMB370,000.00 and the 2nd Defendant's suggested purchase price of a Shanghai Buick SCX at RMB112,800.00, and annual recurring expenses of RMB26,000.00. To this the parties have suggested that a discount of 40% should be given to reflect all the uncertainties and the possibility that the Plaintiff would at sometime in the future have purchased his own motor vehicle in any event. Taking a replacement period of 8 years, the Plaintiff's claim for future transportation costs may be assessed in the sum of (RMB240,000.00 ÷ 8 + RMB26,000) × 95% × 18 × 60% = $574,560.00. I accept that these figures are reasonable in the circumstances and should be awarded.

Holiday expenses

15. The Plaintiff also claims damages for the increased costs of holidays as he will require assistance on holiday and the full time help of someone such as his brother or some other carer or companion. The parties have suggested an annual sum of RMB8,000.00 giving the sum of RMB8,000.00 × 18 × 95% = $152,000.00. This I consider reasonable and should be awarded.

Accommodation

16. The Plaintiff is now living in a 90 sq metre flat at Wah King New City at a monthly rent of RMB2,400.00. There are three bedrooms for himself, the helper and his brother. The Plaintiff needs a room for his equipment and when his parents visit him. Having regard to the Plaintiff's description of the flat and the photographs and having particular regard to the expert's report of Mr Joseph Kwan I find that a flat of similar size is needed by the Plaintiff.

17. It is suggested by the parties and accepted by me that the Plaintiff requires accommodation in a modern estate in Guangzhou and that his parent's home in the village was unsuitable for him. It is also suggested and agreed by me that the Plaintiff's damages under this head should be assessed on the basis of the rental of a flat similar to the one which the Plaintiff currently occupies, and that Plaintiff's claim for alternative accommodation should be assessed as follows :-

Rental: RMB2,400 × 12 × 18 years × 95% = $492,480.00

Costs of adaptation: to be incurred every 5 years: RMB31,000 × 18 ÷ 5 × 95% = $106,020.00

Total award:- $598,500.00

18. There will also be increased recurrent expenditure for the plaintiff as a result of the accident such as increased electricity and internet charges. This arises from the fact that the Plaintiff will have to spend more time at home. He also spends a lot of his time on the internet. The parties have suggested and it is agreed by me that increased expenditure of RMB500.00 per month is a reasonable figure. This gives RMB500.00 x 95% x 18 years, giving a figure of $102,600.00 which the I consider is a reasonable award for these additional expenses.

Interest

19. In respect of pre-trial loss of earnings and expenses, I accept that a proper rate of interest is 4.07% per annum. This gives a figure of $278,846.00, being $500,000.00 + $746,703.00 x 4.07% x 65 months ÷ 12. However, it is also accepted by the parties that there should be some reduction to reflect the receipt of Employees' Compensation. This figure will accordingly be reduced to $200,000.00 to make allowance for this.

20. Interest on general damages of $1,700,000.00 will be at the usual rate of 2% from date of writ giving a sum of $56,667.00.

22. There will accordingly be judgment for the plaintiff for this sum with costs to the plaintiff to be taxed, with a certificate for two counsel, and the plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.

23. There will be a stay of execution for 21 days from the date hereof.