WONG SIN LAM v. KUEN FUNG CONSTRUCTION LTD. AND OTHERS

HCPI 1286/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO.1286 OF1999

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

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

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

J U D G M E N T

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

INTRODUCTION

1. This is a brain injury case arising from a construction site accident. Until the commencement of the trial, both liability and quantum had been in issue. However, Mr Strachan, appearing on behalf of each of the defendants, made it clear at the opening of the case that liability was conceded, and that which remained for decision was solely the determination of quantum.

2. The plaintiff, Mr Wong Sin Lam, brings this claim through his next friend and wife, Madam Bong Siat Fa. Consequent upon the injuries that he received, Mr Wong is not capable of handling his affairs and is, therefore, a patient.

3. The removal of liability as a matter for resolution renders unnecessary any detailed description of how the accident occurred. Suffice it to say that on 8 March 1998 Mr Wong, then aged 38, was working as a steel bar fixer on a construction site at Tseung Kwan O New Town. He was a member of a team of such bar fixers in the employment of the 1st defendant, Kuen Fong Construction Ltd, and he had been working on the site for some 7-8 months prior to the day of the accident. The 2nd and 3rd defendants were, respectively, the principal contractor and the formwork sub-contractor.

4. What actually happened on that day was that an assortment of formwork materials, including five large timber planks, were loaded into and on top of a metal cage, and lifted by tower crane up to the 27th floor of Block 3, at which level the plaintiff was carrying out some bar fixing work. As the crane operator swung the loaded cage in towards the building to enable offloading, the large timber planks loaded on top of the cage slipped from their moorings and fell some four metres. One of these planks struck the plaintiff on the head and stove in his safety helmet. Thus began Mr Wong's personal tragedy.

THE MEDICAL HISTORY

5. Mr Wong was very seriously injured. He suffered a compound fracture of the left temporo-parietal skull vault and a thick left temporal extradural haematoma. He was admitted to United Christian Hospital in a coma, and thereafter was transferred to Prince of Wales Hospital for an emergency left parietal craniectomy necessary to evacuate the blood clot. A left frontal ventricular catheter was inserted, and he was transferred to the ICU.

6. Mr Wong's early treatment is chronicled in a report of Dr George Chu of the Department of Surgery at Prince of Wales Hospital. In addition to the cerebral injuries, he had also suffered a stable fracture of C2 in the cervical spine, and his intensive care stay was further complicated by pneumonia, aspiration and sepsis. A tracheostomy was performed on 19 March 1998, and thereafter ventriculitis, a bacterial infection of the cerebral ventricles, developed at the site of the intraventricular catheter and required treatment by antibiotics.

7. After being taken off a ventilator he was able to be transferred to a neurosurgical ward, and on 30 March 1998 was transferred to a Cheshire Home for further rehabilitation, although he had briefly to return to Prince of Wales on 23 April 1998 for removal of the tracheostomy tube, and again in June for follow-up computer tomographies of the brain.

8. Mr Wong's period spent in the Cheshire Home was most unhappy. He manifested severe violent behavioural problems, in the course of which he attacked his wife and medical staff, so much so that on 25 August 1998 he had to be transferred back to Prince of Wales Hospital for psychiatric consultation.

9. Soon after returning to hospital, Mr Wong was admitted to the Prince of Wales Psychiatric Ward for management of his psychiatric problems, which in essence were uncontrolled violent and vulgar behaviour, and when, on 28 September 1998, he was transferred back to the Cheshire Home for rehabilitation, he became uncontrollable once more due to his aggression and unprovoked violence.

10. At the beginning of October 1998 he was again sent back to the Psychiatric Ward of the Prince of Wales for management of his aggression, remaining there until 24 February 1999 when he was transferred to the Psychiatric Ward at Shatin Hospital.

11. On 12 March 1999 Mr Wong was confined to Castle Peak Hospital under compulsory order due to the continuation of violent and aggressive behaviour, and he remained there as an inmate until 7 January 2000 when he was transferred back to Psychiatry at Shatin Hospital. Dr Y.T Kan, a neurosurgeon called by the plaintiff, refers to the "difficult and protracted" psychiatric treatment of Mr Wong's "lewd behaviour, aggression and unprovoked violence", treatment which was characterized by "false and premature hope of cure" and by the "shuttling" of Mr Wong between the rehabilitation center of the Cheshire Home and the various psychiatric hospitals or wards from 1998 until February 2001, at which stage he was allowed extended home leave. He was formally discharged from Shatin Hospital on 18 May 2001.

12. It is fair to say that Mr Wong's discharge from hospital and the fact that he is able to be cared for at home by his wife is not something that was anticipated during his time in institutional care. As Dr Kan points out, as late as October 2000 "he was seen to squeeze his wife's neck" (report by Dr T.S. Wong dated 13 November 2000), whilst in the same report Dr Wong, his treating psychiatrist at the time, was clearly pessimistic about his prognosis when he opined that Mr Wong was "not fit to be discharged in the coming months or even years".

13. It is equally clear that after three years' of hospitalization of one form or another that Mr Wong is able to remain at home, as opposed to an institution, by reason not only of the devoted care he receives from his wife, but also as the result of continued outpatient psychiatric care together with a cocktail of daily drug therapy which now seems able to control what hitherto had been the more unacceptable manifestations of his post-injury behaviour.

THE MEDICAL EVIDENCE

14. A not inconsiderable amount of medical evidence has been collected for this case. It falls into three categories. First, there are eight agreed reports covering the institutional post-accident period, culminating in Dr Wong's report of 13 November 2000 to which earlier I have alluded. As may be expected, this material is historical and is non-contentious.

15. Second, there is a body of medical evidence which was not agreed, and which has been the subject of viva voce evidence. Called on behalf of the plaintiff were Dr Y.T. Kan, neurosurgeon, and Dr Calais Chan, a clinical psychologist, whilst their counterparts for the defendants were Dr Edmund Woo, neurologist, and Professor Peter Lee, also a clinical psychologist.

16. A third category of medical evidence emerged only during the course of the trial, and took the form of reports from Professor Michael Tong for the plaintiff and Dr Simon Wong for the defendant, neither of whom were called, although their brief reports were formally tendered. Both doctors are specialists in otorhinolaryngology, and each speaks to throat problems consequent upon the subglottic stenosis secondary to the plaintiff's tracheostomy shortly after the accident. Whilst there appears to be a swallowing problem if food is eaten fast, which itself probably is the result of behavioural change consequent upon the brain damage, the broad consensus seems to be that the subglottic stenosis at present has not produced a functional disability. I do not consider that this evidence is of particular assistance or importance in the broad scheme of things.

RESIDUAL DEFICITS

17. In terms of the viva voce evidence of the medical experts, there seems to me to be considerable common ground as to the residual clinical deficits under which Mr Wong now labours consequent upon the severe brain injuries he suffered on that day on site in March 1998. There is, therefore, as Mr Strachan expressed it, what may be regarded as a "platform of similarity" in the expert opinion both as to the very significant manner in which Mr Wong had been changed by his accident, and also, more happily, as to the fact that there has been an unexpected and clear improvement in his condition, starting at the end of 2000 and going through to the end of 2001. So that where the real diversion of opinion occurs, I think, lies not in objective analysis of the deficits themselves, but in terms of their effect upon Mr Wong's current quality of life. I have occasion later in this judgment to refer to some of these differing views.

18. For the present, however, I return to what I perceive as the broad area of agreement in terms of Mr Wong's present clinical condition. The position appears to be thus.

19. As a result of his injuries Mr Wong has been rendered a mild mental defective. His IQ is estimated by Professor Lee at 69, and by Dr Chan at 61, and for present purposes it does not seem to me that the small difference greatly matters. Both clinical psychologists agree that Mr Wong gave up quickly when faced with tasks set to determine the extent of his cognitive deficits, and both agree that in addition to impairment of his intellectual capacity, both long term and short term learning and memory functions are impaired. It is also evident that his defective functioning, in particular the ability to monitor and to regulate his thought and behaviour, results in adverse mood changes variously leading to irritability, impulsivity, rigidity, egocentricity and lack of volition.

20. From a neurological viewpoint, Dr Kan identified that which he suggests is Mr Wong's moderate clinical dementia, and records his unsteady gait, mild degree of difficulty of bladder control, some sexual impairment, and a 17% risk of developing epilepsy. Dr Woo did not demur from the general perspective as to the level of dementia, albeit he did express specific disagreement at the epilepsy prognosis, expressing scepticism, maintaining that whilst the figure may have been 3-4% in the first year post-injury, such small percentage was likely to drop further with the passage of time absent any attack. I find it difficult to reconcile these views, not least because, as Dr Woo explained, Dr Kan's figures were based on data from Professor Jennet's Scottish study, whilst his opinion stemmed from research in the Mayo Clinic in America, which research, in contrast to Jennet, had no inbuilt bias, instead comparing statistical probability between injured and healthy people. In the event Mr Sarony sought to defuse this area of disagreement by submitting that he would not seek to establish an epilepsy risk at more than 5%, a concession that I accept.

21. I would add at this stage, also, that there was additional disagreement between the neurologists as to the level of cognitive dysfunction as expressed in terms of the American Medical Association's guide to impairment of the whole person, Dr Kan taking the view that the impairment figure was 37% of the whole man, whilst Dr Woo thought a reasonable figure in this case was in the region of 12-15%. For my own part I do not attach any import to these figures in themselves, nor to this apparent discrepancy. Neither counsel has sought to rely upon such data in final submission, and in any event as a matter of principle I fail to see the relevance of AMA assessments of this nature when dealing with common law assessment of damages.

22. There is agreement amongst all the experts that Mr Wong's impairments are permanent, and it further is accepted that Mr Wong has lost totally his working or earning capacity.

23. Finally, it is not disputed that Mr Wong will require to take a variety of medicines, in all probability similar to his present extensive drug regime, for the rest of his life, and further that he will require continuous lifetime monitoring by a psychiatrist who will adjust appropriately the types and dosages of the various medicines required to control his condition in the attempt to keep him on a relatively even keel. In this regard I note a difference of opinion as to whether this should be achieved via the offices of a public or private facility, but the necessity for the continuity of treatment in itself is not in issue.

THE HEADS OF CLAIM

(i) Pain, suffering and loss of amenities

24. There is substantial disagreement over the appropriate level of award under this head. The defendants admit to the sum of $700,000 on the pleadings, whilst in the plaintiff's amended revised statement of damages the figure canvassed is $1.1 million, albeit counsel sought to raise this in submission to $1.25 million.

25. It may be that some, if not all, of the dispute arising in this area stems from the perception of Mr Wong's current functional disabilities. In this regard Mr Strachan maintained the argument that whilst of course badly injured, Mr Wong happily had now staged a recovery of sorts, and was no longer the burden on his wife and household that had threatened to be the case but a relatively short time ago. The recurrent submission was that he required "a modest degree of supervision from time to time in the course of the day", and that Madam Bong, his wife, had exaggerated the position; indeed, it was suggested that she was not a "completely reliable witness", and that in particular accounts of daily routine earlier proffered to doctors by Madam Bong contradicted the bleak account she gave in the witness box.

26. I decline to accept that Madam Bong, who seems to have acted selflessly and loyally throughout, should be thus considered. It seems to me, in light of the utter demolition of her hitherto happy family life with a loving and hard-working husband, that she is amply justified in looking through a glass darkly. Only this lady knows what she has to cope with on a daily basis, and I accept her account as she has given it in court.

27. It is of course clear that, in contrast to the obscenity-shouting physically aggressive man strapped to his bed in Shatin and Castle Peak, that a recovery of sorts indeed has occurred. Equally there is no doubt, even given this recovery, that Mr Wong has suffered grievously, and will continue to suffer, given that there is no realistic hope of further improvement - and this on the basis that the existing drug regime will suffice to maintain the current behavioural plateau. He has lost irrevocably the apparently contented life which he previously enjoyed.

28. The present situation (and I so find) is that to all intents and purposes he has been rendered an egocentric, obstinate and selfish child. He can, as is accepted by Madam Bong, venture out to the local park by himself, and can entertain the occasional visits of friends. In real terms, however, he is dependent upon the care of his wife and elder daughter (who seemed to me to have been severely affected by the loss of her formerly happy and helpful father) for all manner of requirements of daily life, ranging from organizing his clothes, combing his hair and running the bath water to the provision of meals (which he wolfs down with no regard for anyone else) to the necessity for personal accompaniment to any place the route to which is unusual or unknown. I do not accept the proposition that he need not be watched on a virtually constant basis, nor that he is relatively self-contained. Nor do I consider that the video, covertly recorded in August 2002, of the visit of himself and his wife to separate medical establishments, serves to vitiate these conclusions, although it does establish that if he is in familiar territory he appears able to cope with the situation and is in a position to find his way home.

29. However the idea, skilfully propounded throughout, that Mr Wong now suffers what in the broad scheme of things are tolerably minor daily inconveniences, of which his wife need not constantly be concerned, is a concept which I reject in limine. This is now a shambling hulk of a man who has lost any meaningful existence when compared to that which he enjoyed prior to this accident, and who in my judgment requires a degree of supervision and oversight which presently his long-suffering and loving wife is hard-pushed to provide. And in this context I repeat my earlier rejection of the proposition that Madam Bong's evidence was geared to give the impression "that the plaintiff's condition is much worse than it in fact is", to quote from the defendants' concluding submissions. This unfortunate lady, together with her elder daughter, daily has to confront the grim reality of the situation, and (despite the sad hope to which she clings) has irrevocably lost the caring husband and the life she once enjoyed. I do not accept the attempt to minimize the loss of amenities or the extent of the loss which has occurred in terms of the pre-accident character and quality of life for this family.

30. As to quantum under this head, both counsel have urged upon the court diverse authorities, all of which are digested in the useful written skeleton submissions, albeit perhaps unsurprisingly that which other judges have done in the disparate situations before them I have found to be of limited assistance. I have reflected on these cases, and I have also considered the case from the standpoint of the categorization of disablement laid down in Lee Ting Lam [1980] HKLR 657, as updated by the Court of Appeal in Chan Pui-Ki [1996] 2 HKLR 401. In terms of broad categorization, I have no hesitation in placing this case within the 'gross disability' head - I am unable to adopt Mr Sarony's final submission suggestion that it deserves placement within the 'disaster' category and in so doing I bear in mind that these categories, and consequential ranges of awards, must be considered as guidelines and not straitjackets.

31. At the end of the day, after considering all the evidence in this case, together with the authorities placed before me, I have concluded that the appropriate award under this head is $1 million. I bear in mind in particular the totality of the brain damage suffered, together with the consequential cognitive deficits and loss of quality of life of a man still aged only 42, the destruction of a fulfilling and contented family life, and last but not least the obviously quite dreadful time that Mr Wong suffered in various hospitals during the three year post-accident period. I would observe, further, that in my view the award of this sum provides singularly less than adequate recompense for the pain, suffering and loss of amenities which in fact has occurred, but until quantum parameters be revisited at appellate level this court remains constrained by authority.

(ii) Loss of earnings

(a) Pre-trial loss

32. The plaintiff's case is that at the time of the accident Mr Wong was working for 26 days each month at a daily rate of $1,230 per day, of which the $30 constituted travelling expenses (and for which latter element no claim now is maintained).

33. The defendants take issue as to the number of days per month worked by Mr Wong as a daily casual worker as on the date of accident, submitting that the probabilities are that with statutory holidays and natural breaks, the figure should be reduced to 22 days. The defendants also rely upon the fact of the economic downturn as subsequently having affected the construction industry, a downturn which has been acknowledged by a document issued by the Bar Bending Workers' Union. As to daily rate, the defendants accept that, at the time of the accident, the plaintiff earned $1,200, but maintain, with reference to wages schedules compiled from MPF data, that Mr Wong would have seen his daily earnings reduce from $1200 at the date of the accident to $1,050 at the date of trial, by which time also they assert that he would be working only a 15 day month.

34. Mr Sarony makes no bones about the number of days Mr Wong was working at the time of the accident, pointing out that a 26 day month represented the 1st defendant's own case as advanced for the purpose of employee's compensation proceedings in the form of a document signed by Madam Chan, a director of Kuen Fung. He did, however, accept that there had been an economic downturn in the construction industry which now had had the effect, to all intents and purposes, of freezing wages at 1998 levels.

35. Mr Sarony further strongly resisted the claim that Mr Wong's earnings drastically would have been reduced, a claim bolstered by reference to the schedules of wages compiled by the solicitors for the defendants (schedules which were apparently based on MPF statistics provided by the bank with which Kuen Fung Construction had contracted to provide its own MPF coverage), submitting that these schedules were both unreliable and materially misleading. I will not here repeat his critique, which was set out in detail in his final written submission, but in my view his observations are not without merit. He further pointed to the Bar Benders' Union document which maintains the daily minimum wage for bar benders at $1,200, and to certain Government statistics which appeared to demonstrate that the average daily wage in August 2002 for a steel bender was $1,304.50.

36. As to the number of days that would have been worked pre-trial, he pointed out that Madam Chan had said in evidence that the economic downturn did not begin to bite on the industry until 1999, and made the point that even then there would have been a 'lag' with construction contracts running which had been entered prior to the downturn.

37. Perhaps unsurprisingly there was a difference of view as to the reliability of the evidence as to earnings provided by two former colleagues of Mr Wong, Chu Kwai Yan and Au Yeung Mei Tong, Mr Strachan making much of their purported unawareness of the economic downturn in their industry. In this regard it is probably fair to say that these two former colleagues, themselves currently employed, did not reflect this suggested industry-wide situation, although I note that Chu Kwai Yan appeared to accept that 'short term casuals' (as opposed to 'long term casuals') worked less now than formerly. What also emerged from the evidence of the latter was that Mr Wong was part of what he termed his "steady gang" of bar fixers, and it seems tolerably clear that experienced steel binders of this ilk in a recognised gang appear in a better position to obtain, and to keep, in work on those construction sites which are hiring. The willingness of Mr Chu and Mr Yuen to give up a day's pay to give evidence on behalf of Mr Wong provided some testimony as to the regard in which they held their former colleague, whom I accept was experienced and highly capable in this particular skill, and whom I consider would have been in a better position than many to obtain the work on offer.

38. Mr Sarony was prepared to accept that the number of days worked per year required the subtraction of 52 Sundays (albeit Madam Bong said that the plaintiff often worked on Sundays) together with the 12 statutory holidays, so that the rounded-down figure came to 300 days (that is, a 25 day month) albeit he was inclined to make no concession in terms of a reduced daily rate, and for present purposes would apply a constant daily rate of $1,200 per day.

39. My own view is that some reduction in each element of the earnings equation should be made to provide for the industry downturn that has occurred, although I do not think that in the particular circumstances of Mr Wong such dimunition would have been to the level which the defendants have urged upon the court.

40. After considering all the evidence, out of the 57 months which now have elapsed since the accident, in my view the appropriate breakdown for pre-trial loss of earnings is thus:

24 months (at 25 days per month) at $1,200 per day

20 months (at 22 days per month) at $1,100 per day

13 months (at 20 days per month) at $1,000 per day

This, therefore, produces a total figure of $1,464,000 under the head of pre-trial loss.

41. To this sum must be added a further figure representing pre-trial loss in MPF contributions. It is common ground that this should be set at $30 per day, so that on the basis of 1,300 days which would have been worked over the past 57 months such loss in contributions amounts to $39,000.

42. Accordingly the pre-trial loss figure computes to $1,503,000. I so order.

(b) Future Loss of Earnings

43. In considering the award under this head, the twin difficulties of appropriate multiplier and assessed level of earnings loss loom large.

44. First, the multiplier. Mr Sarony has submitted that a working life multiplier of 14.5 be adopted. He does this on the basis of an assumption favourable to the defendant that the plaintiff may not have continued to work as a steelbender during the last 5 years of his working life, and that he may have worked at another job at a lower wage for the latter period. Accordingly, the multiplier is split 10 : 4.5, so that the calculation of future loss proceeds on that basis.

45. As to earnings levels, these are to be estimated, suggested Mr Sarony, at the same level of earnings as pertained in 1998. The end result of this, assuming reduced earnings of $20,000 per month for the final 4.5 years, produces a sum now sought under this head of some $4.2 million.

46. For his part Mr Strachan took issue with the suggested multiplier, maintaining that a multiplier of 10 would be appropriate, bearing in mind that Mr Wong is now 42, and that the reality is that he would have worked into his 50's "but not beyond, say, 55". Mr Strachan submitted that the evidence was that bar-fixers require intelligence, strength and agility, and noted that Au Yeung Mei Tong, the erstwhile colleague of Mr Wong, was at 50 the oldest member of his particular gang, and that Chu Kwai Yan had said that he had not often come across people in this line who were older than their mid-fifties.

47. I am prepared to accept, and so do, that the probabilities are that Mr Wong would not have gone more than a year or two past 60 at this occupation, but I do not agree that necessarily he would have finished by his mid-fifties. He was a physically large, strong man in good health and was very experienced, and I see no reason why it should be thought probable that he would not continue at least to 60, or perhaps a year or so more, at this particular job, the more particularly because there is no evidence that he had any training for anything else; indeed, in terms of inherent probability he would, it seems to me, have continued for as long as physically he was able.

48. The problem in this area, in my view, is not that it is difficult to select a multiplier on the 'conventional' basis, but that present-day interest rate/investment conditions render such selection more than usually contentious. If calculations for future loss, and necessarily therefore choice of a multiplier, are made on the principle that a lump sum is to be provided which, if invested wisely, when taken together with a small drawdown on capital will yield an income stream more or less in line with the earnings that otherwise would have been achieved, it is difficult to see how 'conventionally regarded' multipliers can still be considered appropriate, in light of the fact that, for example, interest rates on US dollars are now at or below 1% even for very significant sums, and the current yield on 5 YearTreasury bills barely achieves 3%. It is of course possible to attain higher rates of return, but only at commensurately higher (and no doubt unacceptable) levels of risk.

49. Against this background, therefore, the implicit assumption within the calculation of conventional multipliers of interest rates of 4-5% patently no longer holds good, which situation formed the background to the House of Lords decision in Wells v. Wells [1999] 1 AC 345, wherein investment in index-linked government securities was taken as the benchmark in respect of which the then current discount rate stood at 3%.

50. Notwithstanding Mr Sarony's invitation so to do, Mr Strachan has submitted that it is not open to this court to obtain the correct multiplier from the Ogden tables on the basis of an established net return in particular instruments. Whilst it seems to me that reference to such tables represents the necessary and logical way now to proceed in the prevailing financial conditions, in my view in this contention Mr Strachan is correct, and I am constrained by appellate authority.

51. In the circumstances, therefore, I propose to address the issue of the appropriate multiplier in a more liberal fashion than hitherto may have been the case, and in this I do not feel unduly influenced by the various authorities to which I have been referred by Mr Strachan in which other courts have selected multipliers of 10 or 11 for male plaintiffs of a similar age to Mr Wong.

52. Accordingly, after some reflection I have concluded that the multiplier to be applied in this instance as part of the loss of future earnings equation should be fixed at a slightly more generous 14, although I recognize that given the current rates of return which are commercially available for lump sum investment this plaintiff is likely to remain hugely behind the premised yield even on the basis of such enhanced figure.

53. The issue of the multiplicand raises yet more argument. The defendants' position is that the multiplicand should be based on the plaintiff working 15 days per month and earning $1,050 per day. Although Hong Kong currently is at or near the bottom of the economic cycle, Mr Strachan submits that nevertheless it is incumbent upon the court to proceed solely upon the existing depressed basis in the future earnings loss calculation. For my part I do not see why this should be so. Industries are cyclical, and those in Hong Kong are no exception. I have no doubt whatever that in Hong Kong construction will not remain at what is currently a relatively low ebb for the next 10 to 15 years, (which period may well encompass another full business cycle), and I decline to proceed on this assumption and to found the future earnings calculation upon this premise.

54. Doing the best that I can within what is a particularly nebulous head of loss, in my view the appropriate daily wage level to apply is that of $1,150, and I will further assume an average monthly work rate over the period of 23 days.

55. Accordingly, on this basis, and given a multiplier of 14, this produces the figure for loss of future earnings of $4,443,600.

56. To this must be added the post-trial loss of MPF contributions, at the agreed rate of $30 per day, which results in the further sum of $115,920, which thus produces an overall sum of $4,559,520 as the assessment under this head.

(iii) Future medical treatment

57. It is common ground amongst the medical experts that Mr Wong is going to require ongoing medical attention for the rest of his life. However, questions arise as to the type of such treatment as will be needed, and whether this should be obtained in the public or private sectors.

58. With regard to psychiatric treatment, the defendants accept that the plaintiff will need to continue with his existing psychiatric drug treatment to maintain his mood and to control what otherwise would be an unacceptable level of impulsivity. It is further accepted that he has been receiving psychiatric treatment free of charge once a month at the Lee Ka Shing Psychiatric Clinic, where it is obvious that he has been very well treated, and that this must continue.

59. For the plaintiff, however, Mr Sarony urges that Mr Wong should be afforded the opportunity for private psychiatric consultation, and accordingly that there should be an award for future medical care at the private sector rate. He cited the necessity for continuity of clinician, and noted that Mr Wong presently attends the clinic on an out-patient basis, so that in the event of a sudden crisis he would have to take his chances with whatever doctor was available, whereas private treatment would be more readily accessible.

60. I am not sure that the latter argument is particularly persuasive, given the frequent lack of availability of private practitioners, and in any event I am against him on this point. The Hospital Authority seems to me to have done an excellent job thus far with a patient with regard to whom initially it had been anticipated that there would be little hope whatever, and I see no reason now to remove Mr Wong from the continuity of care thus established within the public sector. Accordingly, I reject the claim for some $570,000 which has been put forward for the cost of private care.

61. However, I do not consider that such rejection takes care of the point completely. It is clear beyond peradventure that the high quality medical services provided to Hong Kong residents by the financially constrained Hospital Authority cannot continue indefinitely upon a no-charge basis; early indication of the budgetary difficulties now arising has recently been provided by the introduction of a flat-rate charge of $100 per visit to members of the public using the emergency rooms of government hospitals, and it seems highly probable that flat rate charges will be extended to many different services, and also to the provision of drugs. In the circumstances I am minded to make provision of a relatively nominal sum to cover such future expenses as will undoubtedly occur even under the public health umbrella for the rest of Mr Wong's life, and doing the best that I can I award $65,000 under this head, a figure which is slightly more than 10% of the present claim for private sector charges.

62. The second claim advanced under this head is an award for psychotherapeutic counseling, Mr Sarony suggesting that sums of $72,000 and $18,000 respectively be granted for a neuropsychological rehabilitation course for Mr Wong and a psychological course for Madam Bong. The desirability of such treatment was propounded by Dr Calais Chan, although none of the other doctors, including Dr Kan who was called by the plaintiff, supported this head of claim.

63. Mr Strachan suggested, in my view justifiably, that preservation of Mr Wong's residual skills and functions could more effectively be achieved by the plaintiff's attendance at a government sheltered workshop, where he would have the additional benefit of interaction with others. I agree, and reject this head of claim.

64. Lastly in the context of future medical fees, a claim is but lately advanced for consultancy fees for an ENT surgeon. This matter was not the subject of viva voce evidence, two reports being put in by Dr Michael Tong for the plaintiff and by Dr Simon Wong for the defendants. Dr Tong says there is no functional disability, and Dr Wong notes that it is rare to have further progression of subglottic stenosis more than four and a half years after the initial trauma. Against this background, Mr Strachan submitted that the plaintiff has failed to prove the necessity of consultations at all, and has failed to establish the reasonableness of the sums claimed, and says that in any event if further evaluation be required, there is no reason why this should not be in the Prince of Wales hospital where Dr Tong works. I agree with these submissions. This claim, in addition to being late, is not made out.

(iv) Care and Assistance

65. This head of claim falls into two parts, first a claim for the value of Madam Bong's services pre- and post-trial, and second, a claim for the provision of a domestic helper.

66. I deal first with the value of the wife's services. This breaks down into pre-trial and post-trial. So far as pre-trial is concerned, the evidence is that Madam Bong attended on her husband every day, or virtually every day, whilst he was hospitalized. This must have been a desperately depressing task, given the historical record of Mr Wong's lewdly aberrant and physically aggressive behaviour during this period. Mr Strachan complains that this element of the claim was late, and in this he is right. Equally, this is a matter entirely within the knowledge of Madam Bong, and having assessed her in the witness box I accept her evidence. This is a woman who is uneducated and barely literate, and whose pre-accident life has been shattered, but who clearly has remained devoted to her gravely diminished husband. Mr Sarony asks for the modest sum of $3,000 per month for the 33 months of hospitalization, which I accept, and further asks for $5,000 per month for the pre-trial period after Mr Wong had left hospital and returned to live at home, which for present purposes I will take as 23.5 months. As to this, I further accept the posited figure of $5,000, which results in a total assessment for Madam Bong's pre-trial care at $216,500.

67. The cost of her post-trial services is hotly disputed, as is any financial allowance for domestic help. Mr Strachan says that if an award is to be made under the head of post-trial care, then "in view of the plaintiff's comparative independence" it should either be for the supervisory care that Madam Bong provides or for a domestic helper, but not for both.

68. I do not consider that this issue is as straightforward as a skilful advocate makes it sound, nor on reflection do I accept that this necessarily is an 'either/or' situation. In any event, whilst it remains the position that Mr Wong can indeed go down to the local park by himself, or to any 'known' locale within the area, and in fact is permitted to do so (albeit, given her husband's childlike egocentric wilfulness Madam Bong says that she does not have much say in the matter), I simply do not consider that Madam Bong does not, and does not have to, spend a very substantial time in a working day in watching and in looking after and caring for her husband. In this regard I reject the suggestions of the gentlemen who expounded upon this subject in this court to the effect that the supervision which Madam Bong has to give to the plaintiff is but sporadic and of short duration, and whom, I suspect, have little actual idea of what constitutes Madam Bong's usual day; the analogy of a willful and egocentric child, which in my view is apt, cuts diametrically across the idea sought to be purveyed that Madam Bong occasionally has to cast an appraising eye in her husband's direction. It is perfectly clear that however the level of supervision be forensically portrayed, the stark reality is that this wife now bears very considerable, and continuous, responsibilities in caring for her spouse, and I am inclined to think that Mr Sarony is correct when he submitted that if one were to subtract Madam Bong from the domestic equation, the overwhelming probabilities are that Mr Wong would have to be institutionalized.

69. Regarded thus, there is no doubt in my mind that Madam Bong's guidance, supervision and control constitutes an element for which compensation is payable in principle. For this element of the claim, Mr Sarony submitted that $5,000 per month with a whole life multiplier of 19 would be appropriate.

70. After considering the situation, and in light of the fact that, as shortly appears, I intend to make some provision for domestic assistance for Madam Bong, in my judgment the appropriate provision under this head is a monthly allowance in this regard of $3,500 and a whole life multiplier of 18, which produces the sum of $756,000.

71. As to domestic assistance, I have formed the view that a case for this has been made out. Madam Bong's life at the moment seems to me to largely to consist of fairly unremitting drudgery, and she has little if any time even to see her younger daughter, who is severely mentally retarded and institutionalized, and whose home visits are now rare as the result of her father's condition, and of his changed attitude towards her. It seems to me that there should be a number of hours per month in which Madam Bong can be assisted in the household, however such hours be parcelled out, and in my view 30 hours per month is not unreasonable. At the rate of $50 per hour for such domestic assistance, this amounts to $1,500 per month, to which figure I will attach a more limited multiplier of 10, resulting in a figure under this head of $180,000.

(v) Alternative accommodation

72. The plaintiff makes a claim for additional rental living space as the result of this accident. I am surprised that this element was proceeded with after Suffiad J declined in this regard to make directions regarding expert evidence, albeit I rejected Mr Strachan's admissibility submission at the outset of the case. Obvious evidential shortcomings aside in my view the evidential burden is not discharged simply by brandishing an extract from a Chinese newspaper I do not consider that this claim succeeds. The preponderance of medical expert opinion did not support it, including Dr Kan, the plaintiff's expert, whilst the doctor who appears initially to have set this particular hare running, Dr Wong Chung Kwong, ultimately was not called.

73. In a perfect world Hong Kong residents would have more space to live. For my own part, however, it is not easy to see how the relatively small additional space sought will in itself eliminate the selfish and antisocial tendencies presently exhibited by Mr Wong in terms in particular of nocturnal noise and disruption, and I find it difficult to accept that as a consequence of that accident that the defendants should be shackled with the expense of a flat larger than the present pre-accident accommodation. I disallow this claim.

(vi) Investment and management advice

74. In light of Mr Wong's present status, it is clear that the monies awarded to him consequent upon this accident must be retained in court. Since there is no Court of Protection in Hong Kong, such monies must be placed under the control of the Registrar. In the circumstances, therefore, there is no award made for investment and management services.

(vii) Hospital and travelling expenses and tonic food

75. The case was conducted on the basis that the relatively small sums under these heads would be agreed. In fact ultimately this did not transpire, Mr Sarony indicating from the bar that whilst he was prepared to accept a figure of $50,000 Mr Strachan felt able to agree only $45,000. In my view the sum of $50,000 is likely to err very much on the conservative side, given that which has been pleaded, and I award this sum.

(viii) Loss of Society

76. I award that which I understand to be the conventional figure of $100,000 for this statutory claim under s.20C(1) of the Law Amendment and Reform Consolidation Ordinance, Cap.23.

SUMMARY OF AWARD

77. On the basis of the foregoing, therefore, the breakdown of the damages awarded to the plaintiff in this case is as follows :

Pain, suffering and loss of amenities	$1,000,000
Pre-trial loss of earnings - including
Loss of MPF contributions	$1,503,000
Post-trial loss of earnings - including
Loss of MPF contributions	$4,559,520
Future medical expenses	$65,000
Wife's care and assistance : Pre-trial	$216,500
Post-trial	$756,000
Domestic Helper	$180,000
Hospital and Travelling Expenses and Tonic Food	$50,000
Loss of Society	$100,000
Total	$8,430,020

CREDIT TO BE GIVEN

78. I am told by counsel that the plaintiff thus far has been in receipt of $600,000, or thereabouts, which has been paid by the defendants in advance of this assessment. Naturally, credit must be given for this sum when the Order reflecting this judgment is drawn up.

INTEREST

79. I make an order nisi that interest be paid on the pre-trial/judgment special damages from the date of the accident to the date of judgment at half the judgment rate from time to time prevailing, and that interest be paid upon the sum assessed for pain, suffering and loss of amenities at 2% from the date of the writ to the date of judgment.

COSTS

80. I make a further order nisi that the costs of this action are to be to the plaintiff, to be taxed if not agreed.

PAYMENT INTO COURT

81. The monies adjudged due from the defendants to the plaintiff are to be paid into court to be held in an interest-bearing account pending further order.

THE ORDER

82. There is to be liberty to apply as to the form of the Order.