LAU YUET MING v. HUNG LING KWOK AND ANOTHER

HCPI 300/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 300 OF 2011

_________________________

_____________

DECISION

_____________

I.  BACKGROUND

1.  On 1 May 2008, the plaintiff was a passenger on a coach involved in a road traffic accident (“Accident”), and suffered severe personal injuries.

2.  On 29 April 2011, the plaintiff commenced the present proceedings against the 1^st and 2^nd defendants for damages for personal injuries and for other loss and damage arising out of the Accident as a result of the 1^st defendant’s negligent driving of the coach for which the 2^nd defendant was vicariously liable.

3.  On 7 October 2011, interlocutory judgment was entered against the 1^st and 2^nd defendants for damages to be assessed.

4.  Expert medical evidence includes a single joint urology expert for both parties (namely, Dr Koo Chia Gee George (“Dr Koo”)) and one rehabilitation expert for each party (namely, Ms Tsang Lau Kit Ping Alice (“Ms Tsang”) for the plaintiff and Mrs Shelley M Chow (“Mrs Chow”) for the 1^st and 2^nd defendants, collectively “Rehab Experts”)).

5.  At the Checklist Review hearing on 20 October 2011 (“20/10/11 CLR”), I  directed that Dr Koo’s single joint urology expert report dated 10 November 2010 (“Uro Report”) and the Rehab Experts’ joint rehabilitation expert report dated 6 May 2011 (“Rehab Report”) be adduced at the assessment of damages (“Assessment”) without oral evidence.

6.  At the 20/10/11 CLR, the plaintiff applied for leave to adduce expert evidence on valuation of property by a surveyor (“Valuation Expert Evidence”) for the claim for damages to provide alternative accommodation, which application is opposed by the 1^st and 2^nd defendants (“Issue”). I therefore adjourned the Issue for argument, and the hearing came before me on 3 February 2012 (“Hearing”).

7.  The plaintiff filed the affirmation of her solicitor Yang Sau Lin  on 14 December 2011 in support of the need for Valuation Expert Evidence (“Yang Affirmation”).  On 10 November 2011, the 1^st and 2^nd defendants filed the 2^nd affidavit of their solicitor Lai Lai Shan Esther in opposition (“Lai Affidavit”).  In this Decision, I will only refer to materials in the hearing bundle that are relevant for the purpose of determining the Issue.

II.  INJURIES AND TREATMENT

8.  Immediately after the Accident, the plaintiff was taken to the Prince of Wales Hospital (“PWH”).  She was diagnosed to suffer from inter alia (a) pain over low back and pelvis associated with weakness and loss of sensation over both legs, and (b) transection fracture of thoracolumbar spine from T9 to L3 with complete spinal cord injury at L1 associated with complete paraplegia and double incontinence.

9.  The plaintiff was immediately admitted to PWH, and received resuscitation with transfusions and emergency treatments, including (a) surgery for spinal cord decompression and fixation of spinal fracture and (b) insertion of indwelling Foley catheter to drain bladder urine.  Post-operatively the plaintiff was nursed in the intensive care ward, and was later moved to the general ward.  On 14 May 2008, she was transferred to Tai Po Hospital (“TPH”) for further rehabilitation with physiotherapy and occupational therapy.

10.  Subsequently, the plaintiff and her family requested discharge from TPH for further management by hospitals in Mainland China.  Between 3 September and 18 November 2008, the plaintiff was admitted to hospitals in Mainland China for rehabilitation and management.  Thereafter, she returned to Hong Kong and was admitted to the transitional residential and rehabilitation service of SAHK Jockey Club New Page Inn (“NP Inn”) for occupational therapy and physiotherapy.  In May 2009, she was discharged from the NP Inn.  Since then until April 2010, she attended the SAHK NTE Community Rehabilitation Day Centre two times a week as a day patient for occupational therapy and physiotherapy.

11.  There has been no recovery of the plaintiff’s paraplegia and double incontinence. She remains bed and wheelchair-bound.  Although she can do simple activities of daily living (“ADL”), she requires help for showering, dressing up, domestic chores and going out in wheelchair.

III.  PLAINTIFF’S CLAIM ON QUANTUM

12.  In the Statement of Damages filed on 29 April 2011 (“SOD”), the plaintiff claims for inter alia the value of past and future services by her two sisters, past and future cost of a domestic helper, and incurred cost of home modifications. She avers that she also requires a flat in a multi-storey building located in the urban area (with lifts) of 748 sq ft (usable floor area) or 935 sq ft (gross floor area).  At a market value of about HK$6,000.00 per sq ft, such property will cost HK$5,610,000.00 (ie HK$6,000.00 x 935 sq ft) with associated stamp duty and estate agent’s commission.  The plaintiff also claims for the cost of home modifications in the sum of HK$500,000.00, the cost for consulting rehabilitation experts on such home modifications in the sum of HK$5,000.00, and removal cost in the sum of HK$5,000.00.

IV.  EXPERT MEDICAL EVIDENCE

13.  Dr Koo in the Uro Report opines that as a paraplegic the plaintiff requires a live-in domestic helper to assist her in showering, dressing and ambulation, and she also requires some home modifications.  He recommends an opinion from an occupational therapy expert.

14.  According to the Rehab Report, the Rehab Experts visited the plaintiff at her home in a public housing unit in Lok Fu Estate, Wang Tau Hom, Kowloon (“Home”).  There they found the plaintiff to be wheelchair-bound but fairly independent in her home environment.  From an rehabilitation point of view, the Rehab Experts opine that the plaintiff’s condition has affected her functioning as follows:

(a)  wheelchair-bound with loss of active function of both lower limbs;

(b)  double incontinence requiring Nelaton catheters, diapers, suppositories and laxatives, etc;

(c)   markedly reduced independence requiring assistance for some ADL, technical aids/equipment, and other consumables.

15.  The plaintiff disclosed to the Rehab Experts that she lived in the area for over 40 years and moved into the Home with her mother in 1995 when it was new.  The Home was in the name of the mother, but when she passed away the plaintiff took over the tenancy.

16.  The Rehab Experts note that the building where the Home is situated is wheelchair accessible, and the Home has direct lift access by two out of four lifts.  There is a security guard desk and security door at lobby level.  Facilities nearby include Lok Fu Centre, market and supermarket.

17.  The Home itself is approximately 300 sq ft, and has a living/ dining room, a bedroom, a toilet/bathroom and a kitchen. Some modifications have been done upon advice by the NP Inn’s occupational therapist.  

18.  In respect of the living/dining room, the front door entrance is 81cm wide and a gentle ramp has been constructed for easier wheelchair access.  Furniture is mostly lined up against the wall to allow for internal wheelchair mobility.  There are mattresses in the living room because the domestic helper sleeps there.

19.  In the bedroom, there is a hospital-type bed and bedside cupboard with a wall-mounted television.  The bedroom door width is only 65cm and only allows commode chair but not wheelchair access, so to move between the bedroom and the living/dining room the plaintiff has to be transferred onto the commode chair and after passing through the bedroom door then onto the wheelchair or bed (whichever is appropriate).

20.  The door of the toilet/bathroom has been widened by 3 inches and changed to a concertina type.  A gentle ramp has been constructed for ease of access by the commode chair or wheelchair.  The toilet/bathroom consists of a toilet on the left side, a wash basin in the middle and a raised shower recess (raised by 33 cm) on the right.  The plaintiff can only access the left and central areas of the bathroom.

21.  The kitchen is long and narrow.  The door is only 61cm wide and the plaintiff is unable to gain access.

22.  The Rehab Experts opine that the plaintiff’s condition affects her ADL.  She is wheelchair-bound and requires assistance in mobility.  She encounters access problems in her bedroom, kitchen and bathroom, and has difficulty in transferring from wheelchair to bed and vice versa.  Although she is able to manage fairly independently for level surface in her wheelchair (but it can be exhausting over long distances), she has difficulty with stairs, slopes, kerbs and other architectural barriers.  But the plaintiff has demonstrated her ability to manage living at home with a carer.  The Rehab Experts recommend that she should live at her own home with the service of a domestic helper under supervision and training from various therapists and medical professionals.

23.  For the plaintiff’s accommodation, the Rehab Experts opine that (i) the Home is less than adequate due to insufficient space in the bedroom, bathroom and kitchen, and (ii) the plaintiff should be provided with accommodation that fulfils the following criteria:

(a) her accommodation should be wheelchair accessible with direct lift access;

(b) within the flat there should be sufficient space (in her bedroom, living/dining room, toilet/bathroom and kitchen) for wheelchair mobility (sometimes assisted by the carer), and it should be free of architectural barriers to ensure accessibility and safety;

(c) she should have her own bedroom with ensuite bathroom for privacy for personal care activities;

(d) there should also be additional space for storage and installation of medical equipment (but Mrs Chow does not entirely agree as it is important to prescribe/select equipment that is actually used on a regular basis and not left to gather dust or become extra “shelves” or “washing line”);

(e) there should be living quarters for the carer;

(f) there should also be adequate space for activities and visitors to alleviate social isolation.

24.  Ms Tsang and Mrs Chow respectively proposes the minimum required net usable space for the plaintiff’s accommodation as follows:

“** Minimum Required Usable Space (excluding external walls & internal partitions)
	[Ms Tsang]	[Mrs Chow]
ROOM	** Space m2 (ft2)	** Space m2 (ft2)
[Plaintiff’s]bedroom (allowing for extra space for wheelchair/attendant)	9	9
Ensuite bathroom	5	4
Extra space for equipment	4	1
Sitting/dining room (allowing for extra space for wheelchair/attendant)	18	16 [the Plaintiff] only lives with 1 attendant and not with family
Toilet/bathroom for others	4.5	3.5
Kitchen	4.5	4
Room for carer	6	6
Balcony/Utility/others (eg circulation, corridors)	7	3
TOTAL AREA	58 (624.08)	46.5 (500.34)
Optional:Spare room for visiting family members	6	0 [Not required]
TOTAL AREA	64 (688.64)	46.5 (500.34)”

25.  The Rehab Experts also agree that an occupational therapist should be consulted for modifications to the accommodation to ensure access and safety for the plaintiff:

“Occupational Therapist consultation for home modification	[Ms Tsang] (4 hours (@ HK$1,500 per hour) [Mrs Chow] Agreed
Home modification. (including widening of doorways, levelling of thresholds, modification of toilet and bathroom, installing all electric switches and plugs to be accessible for wheelchair, make good of all tiling and wall surfaces, etc.)	[Ms Tsang] HK$100,000 [Mrs Chow] Agreed”

V.  PLAINTIFF’S WITNESS STATEMENT

26.  According to the plaintiff’s witness statement dated 7 December 2011, after she returned to Hong Kong from Mainland China, her sisters arranged for a domestic helper to look after her at the NP Inn.  When she returned home on 28 April 2009, the domestic helper continued to look after her daily living whilst her sister continued to help.

27.  The plaintiff claims the Home is unsuitable for her needs.  Although her family applied to the Hong Kong Housing Authority (“HKHA”) to alter the internal partitioning of the Home, HKHA only allowed her to build a gentle ramp to the bathroom door but did not permit other changes.  The bedroom and main entrance doors are too narrow for the wheelchair, so she has to be transferred to the commode chair first if she wants to enter/leave the bedroom or the Home.  With only one bedroom at the Home, the domestic helper has to sleep in the living room.  Many previous facilities within the Home are no longer suitable for her, so with her sister’s help she has purchased many furniture/items that suit her needs. There is insufficient space in the living room for all her therapeutic equipment.

28.  The plaintiff wants to relocate to a two-bedroom flat of 700 sq ft with a balcony and a main ensuite bedroom (for more privacy) as her permanent and long-term accommodation, but such property can only be found in the private sector.  Further, public housing is unsuitable because the internal partitioning cannot be altered and the room doors are too narrow for wheelchair access.

29.  The plaintiff claims it is best to purchase alternative accommodation because renting property has limitations.  A landlord is unlikely to permit alteration of the internal partitioning, and there is risk that the landlord may not re-let the property at the end of the tenancy in which event the plaintiff will have to find a new place to reside.  Further, the plaintiff cannot predict her future rental expenses and any fluctuation/ increase in rent will create financial pressure for her.  The plaintiff prefers to live in Wong Tai Sin area especially in Hong Keung Court and Tak Keung Court.  She grew up in the area and is familiar with the vicinity. Her two sisters live nearby, and her parish friends are also close by.

VI.  TRUE QUESTIONS FOR THE ISSUE

30.  As Ms Lau, solicitor for the 1^st and 2^nd defendants, accepts in her written submissions, if a tortfeasor is required to provide for the cost of alternative accommodation for an injured person, such damages are usually assessed on a rental or a purchase basis.

31.  The 1^st and 2^nd defendants’ stance as set out in the Lai Affidavit is as follows:

(a)  The plaintiff can seek alternative accommodation in the public sector.  As a recipient of disability and comprehensive social security allowances, she should be assisted by a social worker, and such social worker can assist her by making recommendation to HKHA for allocation of a suitable public housing unit with two bathrooms under their compassionate housing scheme.

(b)  If the plaintiff seeks alternative accommodation in the private sector, it should be by lifelong rental and not purchase of suitable alterative accommodation since the latter option will unjustly enrich the plaintiff by leaving to her estate a substantial asset upon her death.

(c)   If the plaintiff seeks alternative accommodation on a rental basis, she should consider renting property under the Home Ownership Scheme (“HOS”) secondary market, eg a unit in Hong Keung Court (near to the Home) the largest of which has gross/saleable floor areas of 80m²/60m² or a HOS unit with two bathrooms.  But the Lai Affidavit acknowledges that only sale/purchase and not rental transaction records of Hong Keung Court are available on the website of Centaline Property.

(d)  Alternatively, the plaintiff can consider renting private residential property in the neighborhood where she lives, eg Bel Air Heights or San Po Kong Plaza in Wong Tai Sin area near to the Home, or other property in Kowloon East and Tseung Kwan O areas.  According to the Lai Affidavit, disabled persons prefer to live in Tseung Kwan O area where there is a voluntary organisation for disabled persons (ie 路向四股傷殘人仕協會). The service units of Rehabilitation Alliance Hong Kong are situated in Wang Tau Hom, and Hong Kong PHAB Association runs a centre in Lower Wong Tai Sin Estate.

32.  Ms Lau submits that any damages for alternative accommodation should be assessed on a rental basis, and on such basis, a further issue arises as to whether such damages should in fact be premised on any increase in rental for the new accommodation over and above the rental for the Home.

33.  In Ng Kwok Wing v Lau Ping Kwan & ors (t/a Kei Yip Engineering Co) & anor [1996] 4 HKC 667, 689, a case not cited by either Mr Wong, counsel for the plaintiff, or Ms Lau, Cheung J (as he then was) said as follows:

“The recovery of rental difference was the approach adopted in two cases, namely, Leung Sai Kui v F Zimmern & Co (A 1151/85, unreported) and Li Tin Yau v Leung Chi Tai (A7524/85, unreported). The approach adopted in these two cases was correct because the plaintiffs were living in rental accommodations and because of the disability they were required to move to another accommodation with a higher rental.”

34.  This approach was followed in Lai Chi Pon v Toto Steel & Iron Works Ltd & ors HCPI 1149/1995, Cheung J (as he then was) (unreported, 18 July 1997), which is also not cited by either Mr Wong or Ms Lau.  In that case, the plaintiff (who became an incomplete paraplegic), his wife and his daughter lived with his father in a flat owned by his father.  Prior to the accident, the plaintiff paid a monthly sum to his father as rental, but he intended to eventually buy a property for his own family.  The learned judge awarded damages for alternative accommodation by deducting notional rental which the plaintiff would have paid from the current rental of a suitable flat, adding thereto management fees and rates, and applying an appropriate multiplier.  Expenses relating to legal costs of tenancy agreement, agent’s fees and stamp duty were allowed after applying appropriate multipliers, and removal costs were allowed in a lump sum.

35.  Ms Lau cites Chan Yuet Lui Rebecca v The Ritz-Carlton Limited & ors HCPI 658/2000, Jackson J (unreported, 7 January 2002) in support of her proposition in paragraph 32 above.  In that case, the paraplegic plaintiff moved from the family’s public housing unit to private accommodation that was more suited to her needs after the accident.  The court found that by applying an appropriate multiplier to the cost of renting such private accommodation it was cheaper than buying it or its equivalent, and awarded damages for alternative accommodation by adding up (a) the rental of the new accommodation less her estimated future contribution towards such accommodation and applying an appropriate lifelong multiplier thereto, (b) the agreed cost of alteration, (c) the legal costs of tenancy agreement, agency fees and stamp duty and applying appropriate multipliers thereto.

36.  Ms Lau suggests that if damages for alternative accommodation are to be assessed on a purchase basis, such assessment should be made in line with the guidance in Lee Suk Yin & ors v National Insurance Company Limited representing the estate of Ngai Chung Lit, deceased HCPI 439/2000, Suffiad J (unreported, 28 September 2001) to ensure that the injured person does not gain a windfall (see paragraph 31(b) above).  In that case, the learned judge held that damages for purchase of special accommodation should not be the net capital cost of such purchase, but the additional annual costs over the plaintiff’s lifetime of providing that accommodation, ie the cost of borrowing the capital sum less the actual rental that the injured person would have to pay in any event.

37.  Such principle was in fact drawn from the earlier case of Ng Kwok Wing.  In that case, the injured plaintiff had his own property and intended to purchase a property that was suitable for him.  Attempts to look for alternative rental accommodations had been unsuccessful because landlords were reluctant to alter their premises to meet his needs.  Cheung J (as he then was) held that where it was the plaintiff’s express intention to purchase a new property (which was not a far-fetched idea in that case as the plaintiff and his wife already had a property of their own) and rental accommodation to meet the plaintiff’s needs would be difficult to obtain in the open market, it would be wrong to adopt a rent differential approach.

38.  On the other hand, Mr Wong submits that damages for providing alternative accommodation should be on a purchase and not a rental basis, and he refers to Ng Chi Chung v Lau Kam Ping [2000] 2 HKC 759 in support.  In that case, the plaintiff who suffered severe injuries resided in a public housing unit with his family members.  The defendant suggested that new accommodation was unnecessary because (a) a full-time live-in domestic helper was not required, (b) some adaptation work could be done to the plaintiff’s home to meet his requirements, and (c) new accommodation would lead to unjustified increased in space for his family members.  Chu J found that a domestic helper was required, and there was no evidence to show that HKHA would permit the proposed home modifications.  She added that the increase in space for the plaintiff’s family members was inevitable given his needs.

39.  In assessing costs of alternative accommodation, the learned judge considered it more appropriate to proceed on a purchase basis and not a rental basis since there were uncertainties with rental accommodation, eg the idea of home modifications might not find favour with the landlord, and there was the question of reinstatement at the end of each tenancy.  A purchased accommodation had the advantage of providing a permanent residence with greater flexibility in terms of the adaptation work to be carried out to suit the plaintiff’s needs.

40.  Mr Wong further reminds that in Ng Chi Chung the learned judge awarded damages for providing alternative accommodation on the basis of the capital value of such alternative accommodation (not the cost of borrowing the capital sum) less rental for the plaintiff’s existing accommodation calculated at an appropriate multiplier.

41.  Further, the Yang Affirmation disputes the stance of the 1^st and 2^nd defendants as follows:

(a)  A public housing unit with two bathrooms does not satisfy the recommendation by the Rehab Experts that the plaintiff should have her own bedroom with ensuite bathroom for privacy for personal care activities.  It is said that the plaintiff spends significant amount of time on her bed and in the bathroom.

(b)  The plaintiff should not be confined to looking for suitable accommodation in public housing.  Although she prefers to continue to live around Wong Tai Sin area where she grew up and her sisters live, and she is familiar with vicinity, available public housing may not be in the same area.  Further, the 1^st and 2^nd defendants have not shown that suitable alternative accommodation in public housing is actually available or that HKHA allows home modifications within public housing units.

(c)   It is preferable for the plaintiff to purchase rather than rent suitable accommodation in the private sector because (i) any award for providing rented accommodation may be inadequate since it is impossible to assess any increase in rent in the property market over the plaintiff’s lifetime, and (ii) landlords are unlikely to agree to the substantial home modifications as recommended by the Rehab Experts, but even if they do there will be recurring costs for modifications and reinstatements for successive tenancies.  A flat purchased as permanent residence for the plaintiff has greater flexibility in terms of home modifications to suit her needs.

42.  Mr Wong summarised the issues to be determined at the Assessment in respect of the question of damages for providing alternative accommodation for the plaintiff as follows:

(a)  if the plaintiff requires alternative accommodation, whether the plaintiff can rent a public housing unit that fulfils the recommendations by the Rehab Experts;

(b)  if not, whether it is more appropriate to assess such damages on the basis of providing private sector alternative accommodation on a purchase basis or on a rental basis;

(c)   on a purchase basis, how to assess and what is the purchase value for the alternative accommodation;

(d)  on a rental basis, how to assess and what is the rental value for the alternative accommodation.

43.  Notwithstanding the above matters, at the Hearing Mr Wong and Ms Lau agree that at this interlocutory stage of the present proceedings I need not come to any definitive view on whether damages for providing alternative accommodation for the plaintiff (if any) should be assessed on the basis of renting a suitable public housing unit or alternatively on the basis of renting or buying a suitable private residential property, and I should regard all such options as arguable for the purpose of the Issue.

44.  I further find it unnecessary at this interlocutory stage of the present proceedings to decide on the appropriate methodology for assessing the cost of providing for alternative accommodation discussed in paragraphs 31-41 above for the purpose of the Issue.  Rather, the crucial question for the Issue is whether Valuation Expert Evidence is required to provide the evidential foundation for considering and/or adopting any such methodology at the Assessment.

45.  Mr Wong and Ms Lau further agree it is a matter of factual and not expert evidence as to (a) whether HKHA will allow home modifications to any public housing unit to meet the plaintiff’s needs, (b) if so, whether any social worker will assist her by making recommendation to HKHA for allocation of compassionate housing, and (c) if so, whether HKHA will allocate compassionate housing for her.  These factual issues (which are not for determination at this interlocutory stage of the present proceedings) do not come within the expertise of any surveyor who may be engaged to provide expert opinion on valuation of property.

46.  Mr Wong’s written submissions suggest that Valuation Expert Evidence is obviously required as to whether any HKHA public housing unit can meet the requirements for alternative accommodation as recommended by the Rehab Experts. But for reasons explained in Part IX below, I am not with Mr Wong on such contention.

47.  In my view, as explained in paragraph 44 above, the focused question for the present purpose is whether Valuation Expert Evidence on the rental or purchase value of suitable alternative accommodation for the plaintiff is required to assist the judge/master hearing the Assessment.

48.  Once factual or expert evidence as to the rental or purchase value of suitable alternative accommodation is available, the parties and the court at the Assessment can then consider (a) the applicable legal principles or methodologies for assessing damages for providing alternative accommodation for the plaintiff, and (b) the award for such head of damages (if allowed) by taking into account inter alia such applicable legal principles or methodologies, the plaintiff’s factual witness evidence, the expert and treatment medical evidence, the expert opinion of the Rehab Experts, the factual evidence in relation to public housing estates (see paragraphs 45-46 above), and the evidence as to the rental or purchase value of suitable alternative accommodation. Consequently, despite the many matters raised by the parties for claiming/opposing damages for providing alternative accommodation for the plaintiff, the Issue is narrowly confined to the focused question set out in paragraphs 44 and 47 above.

VII.  LEGAL PRINCIPLES

49.  Both parties have no material dispute over the relevant legal principles. Mr Wong refers to Arfan Muhammad v MPS Engineering Limited & anor HCPI 457/2003, Deputy High Court Judge Muttrie (unreported, 30 June 2005) and my decision in Ansar Mohammad v Global Legend Transportation Limited DCEC 1090/2006 (unreported, 8 May 2007).

50.  It is unnecessary to repeat in fullness the relevant legal principles.  Suffice to say that the guiding criteria is whether the expert evidence sought is necessary, relevant and of probative value.  In considering the issue of relevance, the expert evidence must be relevant in the sense that it is helpful to the court in arriving at its decision on one or more issues to be resolved.  If the court can make an informed decision on (and/or resolve) any issue in the case justly without the aid of such expert evidence, then the court may regard such expert evidence as not useful and it should not be adduced.  This calls for an exercise of judicial discretion, and pertinent considerations will include (a) how cogent the proposed expert evidence will be, (b) how helpful it will be in resolving any of the issues in the case, and (c) how much it will cost and the relationship of that cost to the sums at stake (see Fung Chun Man v Hospital Authority & anor HCPI 1113/2006, Bharwaney J (unreported, 24 June 2011) at para.13).

51.  Mr Wong refers the following passages from Hodgkinson and James, Expert Evidence : Law and Practice 3^rd ed as follows:

“When issues concerning valuation of land and buildings come before the courts …… they almost always include questions of expert evidence. The most common issues are those related to annual or other periodic values attached to land, such as rent or rates, …… The expertise involved is almost invariably that of a surveyor, who may well be a specialist within the particular sector concerned, such as office buildings, agricultural lettings, etc ……” (para.16-001 at p.474)

“…… Where the question is what the particular land would be worth on the open market, the principal method is the use of comparables. However, these are only as useful as their similarities with the subject property and it may be necessary to carry out a valuation exercise based upon the value of the property itself in commercial terms.” (para.16-002 at pp.475-476) (my emphasis)

“…… Usually, where experts are instructed on both sides, each valuer will prepare a list of comparables, and depending upon the size and nature of the particular market, these may or may not overlap. ……It is essential when considering comparables to be aware of every aspect of their circumstances. A property which is superficially similar in position and nature may be useless as a comparable if the rent is subject to peculiarly onerous or favourable terms in the lease as to user and repairs. The lease of a particularly good comparable may not have been finally agreed, but if a firm offer has been made, and can be proved, the comparison is of consideration weight. It is suggested that strict proof should often be insisted upon in such a case as information as to the state of such negotiations, even where given and received in good faith, can be very unreliable.” (para.16-004 at p.477) (my emphasis)

52.  In my view, before one can draw assistance (if any) from the above passages, one needs to bear in mind the difference between the purpose of valuation of land/property in other civil proceedings, and the purpose of ascertaining the purchase or rental value of suitable alternative accommodation for the plaintiff in personal injury litigation.

53.  Where an issue of valuation of land/property arises in civil proceedings other than personal injury claims, it often concerns valuation of the rental or market value of a particular property at a particular time/period, eg for ascertaining the market value of a specific property being the subject of a sale and purchase transaction at the time of breach in order to assess damages for breach of such transaction, or for ascertaining the rental value of a specific property being the subject of a tenancy agreement in order to assess damages for repudiation on the basis of loss over the remaining tenancy term.

54.  In these circumstances, special features of the particular property may have significant impact on its worth in the open market, so the comparables selected must be directly relevant, and there must be careful evaluation of the similarities and differences between the particular property and the comparables and of the timing of the transactions relating to the comparables to arrive at the rental or market value of the particular property at a particular time/period. It is therefore understandable that the above passage in Expert Evidence: Law and Practice at para.16-004 at p.478 mentions that onerous or favourable terms in the lease of a particular property may affect the weight of a superficially similar comparable that is not subject to lease or is subject to a lease that does not contain such terms.

55.  But in assessing damages for providing suitable alternative accommodation in personal injury claims, the court is not trying to ascertain the rental or market value of any particular property at any particular time/period. Rather, the court’s function is to ascertain (a) what the plaintiff’s accommodation needs are, (b) whether such needs can be met by his current residence, (c) if not, whether home modifications can be carried out to meet such needs, (d) if not, whether new accommodation is required, (e) if so, whether such new accommodation should be purchased or rented, so that the court can arrive at the amount of general damages to be awarded for providing alternative accommodation on a rental or a purchase basis.

56.  The fact that in personal injury litigation the court is not concerned with the rental or market value of any particular property in the open market at any particular time has two important consequences.  

57.  First, many of the special features of a particular property, eg its floor zone (high or low level), the view from the property, its orientation, etc, are not relevant considerations.  Other than his needs as a result of his injuries, a plaintiff cannot pick and choose a property on the basis of such special features.  After all, damages are merely compensatory.  But if a range of suitable properties come inevitably with these features, it is unlikely that the value of these features will be discounted. Rather, it is likely that the value will be based on reasonable selection within such range of suitable properties.

58.  Secondly, unlike other civil proceedings, it is unnecessary to ascertain the rental or market value of a particular property at a particular or notional time, eg at the time of breach of contract.  Rather, the court is more concerned with (a) ascertaining what suitable properties are currently available in the market and (b) awarding damages in a sum that reflects reasonable costs of acquiring such alternative accommodation on a rental or a purchase basis.  For (a), there is little point in carrying out any valuation exercise if, say, units in a certain building are not or rarely on offer to let or sell in the open market or if the identified unit is already tenanted.  After all, it is said that the Plaintiff’s need for alternative accommodation is an present and existing one that needs to be addressed.  For (b), as explained in the above paragraph, the court need not calculate with precision any enhancement or discount in value as a result of special features of the properties considered.  After all, assessing such damages is always a matter of realistic and pragmatic impression based on the evidence rather than a precise finding dictated by specific methodologies or calculations (see Wong Hin Pui v Mok Ying Kity & anor [2000] 1 HKLRD 856, 872F).  Minute investigation of sample flats is not necessary (see Chang Sui Man v Wing Kei Bamboo Scaffolding Co Limited & anor HCPI 693/2005, Fung J (unreported, 26 April 2010)).

59.  In my view, in the context of personal injury claims, the  passages from Expert Evidence: Law and Practice must be read with the above caveats in mind.

VIII.  PARTIES’ RESPECTIVE STANCE

(a)  1^st and 2^nd Defendants

60.  The Lai Affidavit suggests that without admitting the Plaintiff is entitled to seek alternative accommodation in the private sector, there are a number of websites by property agencies regarding private residential estates (“Websites”), eg the websites of Midland Realty and Centaline Property, that provide useful updated information regarding rental and sale/purchase of units.

61.  The Lai Affidavit exhibits some information and photographs downloaded from the Websites showing the neighbourhood (eg parks, community facilities, etc), the building estate, the interior of the relevant unit, and the clubhouse facilities such as:

General information as to the estate

(1) the exact location of the estate together with the vicinity shown in a map;

(2) the name of the developer;

(3) total number of towers and units in the estate and number of storeys in each tower;

(4) a list of various layouts available in the estate;

(5) a list of facilities available in the clubhouse;

(6) total number of carpark spaces in the estate;

(7) public transportation network such as whether there is a MTR station or bus terminus nearby;

(8) recent sale/purchase transaction records of units in the estate;

(9) photographs showing the environment of the estate and the facilities in the clubhouse;

Details of a particular unit

(10) the block and floor of the unit;

(11) the floor zone (low/medium/high);

(12) the size;

(13) the layout (number of rooms and whether there is ensuite bathroom);

(14) the floor plan;

(15) the asking monthly rent and whether it is inclusive of rates and management fee;

(16) brief description on the view from and orientation of the unit;

(17) other particulars including decoration and comments given by the estate agents; and

(18) photographs showing the interior of the unit.

62.  The Lai Affidavit suggests the above information will assist in deciding suitable alternative accommodation for the plaintiff, and it will not be cost-effective to obtain a report on Valuation Expert Evidence that sets out suitable choices of alternative accommodation in the private property market and the likely rental/purchase value.  Such report will be outdated by the time of the Assessment.  Given (a) the volatility of the Hong Kong property market, (b) the property agencies’ practice of regular and prompt uploading of property-related data onto their Websites, and (c) the ease of cost-free search for property-related information from the Websites, it will be more practical and cost-effective for the parties to identify appropriate choices of residential property from the Websites with reference to the information therein, and adduce useful information from the Websites as to the monthly rent (clearly stated to be inclusive or exclusive of management fee, rates and government rent) and/or purchase price of the identified premises to assist the court in assessing the cost of providing for alternative accommodation.

63.  In summary, Ms Lau submits it will be sufficient for the parties to adduce the above information from either newspapers or the Websites, which is readily available, informative and updated, to assist the court in assessing damages for alternative accommodation (if any), and the Issue should be resolved in favour of the 1^st and 2^nd defendants.

(b)  Plaintiff

64.  On the other hand, the Yang Affirmation disputes the 1^st and 2^nd defendants’ stance.  First, it is suggested that the extracts downloaded from the Websites as exhibited to the Lai Affidavit merely contains offers made by the vendor, but only transaction records can reflect the market price of properties that are relevant for assessing damages for alternative accommodation.

65.  Secondly, the Yang Affirmation suggests it will be necessary for a surveyor to make adjustments to prices in the transaction records to reflect differences between floor level, size, orientation, tenancy at sale and time of transaction etc.  Further, the surveyor will compare the value, saleable area and location of different estates, and give opinion on whether the value has appreciated or depreciated during the time between the different transactions.

66.  Thirdly, the Yang Affirmation says that instead of being overwhelmed by computer printouts of considerable transaction records, building information, building layouts and neighbourhood maps, the court will be better assisted by a surveyor’s valuation expert report giving his professional recommendation for accommodation suitable for the plaintiff, in particular as to (a) whether the flat will be wheelchair accessible with direct lift access and (b) whether the flat is free of architectural barriers to ensure accessibility and safety.  Such opinion is preferable over information from the Websites “because the accuracy and reliability of the latter is doubtful” and because it will save time and costs in ascertaining suitable accommodation from the Websites.

67.  As regards the suggestion that the surveyor’s valuation expert report will be outdated by the time of the Assessment, the Yang Affirmation states that this merely depends on the time for obtaining such report, and any concern can be cured by the plaintiff obtaining an updated  report, say, one month before the Assessment.

IX.  PUBLIC HOUSING

68.  Mr Wong submits that Valuation Expert Evidence is obviously required as to whether any public housing unit can meet the plaintiff’s requirements as recommended by the Rehab Experts, especially as to whether such unit has direct lift access, is wheelchair accessible and has sufficient space in the bedroom, living/dining room, toilet/bathroom and kitchen for wheelchair mobility.

69.  Mr Wong refers to Ng Chi Chung. In that case, the defendant suggested that some adaptation work could be done to the plaintiff’s existing public housing unit so there was no need to move to new accommodation.  Chu J noted that the feasibility of the proposed alteration or adaptation was unknown.  “More fundamentally, this being a rented public housing unit, there is serious doubt whether major renovation or alteration work can be freely carried out by the tenant.  There is no evidence to show that the [HKHA] would permit the work proposed by the defendant” (at p.773).  Nevertheless, there is no suggestion in Ng Chi Chung that such evidence must necessarily be Valuation Expert Evidence.  In any event, as explained in paragraph 45 above, Mr Wong and Ms Lau agree that whether HKHA will allow a tenant to carry out any adaptation or alteration work to any public housing unit or to carry out such work to the extent as recommended by the Rehab Experts is a matter of factual and not expert evidence.

70.  Even if the 1^st and 2^nd defendants are able to cross such hurdle to show that HKHA will permit the home modifications recommended by the Rehab Experts, I am of the view there is no need for any Valuation Expert Evidence as to the rental value of any suitable public housing unit. Such information can be readily ascertained from HKHA, and there is no market rental value for public housing units as such.  

71.  It also appears to me plain that Valuation Expert Evidence is not required to show whether any public housing unit has an ensuite bathroom, whether such unit is accessible by lift and wheelchair, and whether there is sufficient space within the unit for wheelchair mobility.  It is common knowledge that the size and layout of public housing units are standardised, and in my view direct enquiries with HKHA (fortified by non-party discovery application or by subpoena to their staff if necessary) is likely to elicit factual evidence on such matters, ie whether any public housing unit in the Wong Tai Sin or Kowloon East areas (a) is accessible by lift and wheelchair, (b) meets the size and layout criteria suggested by the Rehab Experts, and (c) has internal and main entrance doorways that permit wheelchair access.  Indeed, I cannot see how such factual evidence (which is not within the realm of the open market) can be bettered by valuation opinion by surveyor.  Even if valuation opinion by surveyor is allowed (which I disagree), these are underlying factual matters which in any event requires proof (see extract from Expert Evidence: Law and Practice at para.16-004 at p.477 at paragraph 51 above).

72.  The above analysis is also borne out by Fung J’s observations at the pre-trial review of Lam So Chai v Cheung Sai Lui trading as Hoi Fung Stevedore & Transportation Company HCPI 360/2007 (unreported, 3 July 2009) as follows:

“20. The Plaintiff is currently residing in a 3 bed room public housing flat of 300+ sq ft at monthly rental of $1,440. The Defendant’s case is that only alteration to the toilet is necessary, and permissions on alterations have been granted in similar cases in the past on compassionate grounds by the Housing Department. Hence, I directed that the parties to agree on the scale measurements of the toilet and the approach area on the floor plan. If the trial judge thinks the flat is too small, alternative accommodation may be provided for by logical projection. It may not necessarily be level ground dwelling advocated by Mr Kowk [ie the plaintiff’s needs expert]. I also directed the parties to obtain evidence of the Housing Department’s policy on alteration for disabled persons. Time has been budgeted accordingly.”

73.  I agree with Ms Lau that it is not necessary to engage any surveyor to give Valuation Expert Evidence in respect of the option of suitable public housing unit as alternative accommodation for the plaintiff.  Even if HKHA is not forthcoming on its policy on alteration of public housing units for disabled persons (but there is no evidence before me that they will adopt such attitude) and there can be relevant expert evidence on such subject (which I disagree), the 1^st and 2^nd defendants only have themselves to blame that by opposing any expert evidence they are unable to adduce evidence to show that the home modifications recommended by the Rehab Experts are feasible for public housing (see paragraph 69 above).

X.  PRIVATE PROPERTY ON A RENTAL OR A PURCHASE BASIS

(a)  Authorities

74.  Mr Wong submits and Ms Lau in her written submissions accepts, it is historically not uncommon for parties to adduce and the court to accept opinion evidence from a surveyor on open market valuation of alternative accommodation.

75.  In Ng Kwok Wing (which was decided in May 1996), a chartered surveyor and valuer carried out investigation on suitable accommodation for the plaintiff and his family, and identified an estate in Shatin as the most suitable building.  The complex was like a self-contained town, had its own podium gardens with sports and commercial facilities.  It was near to the KCR station and there were parking facilities for disabled persons.  The court relied on the expert’s opinion on the current open market price (inclusive of agency fees, stamp duty and conveyancing fee) of such suitable property in calculating the cost of alternative accommodation according to the methodology referred to in paragraph 33 above.

76.  Mr Wong refers to Ng Chi Chung (which was decided in March 2000) where the court adopted the price of suitable alternative accommodation quoted by the defendant’s surveyor, which was more updated than the report of the plaintiff’s surveyor.

77.  In Wong Hin Pui (which was decided in December 1999), even though the plaintiff unquestionably required alternative accommodation, there were many imponderables (eg it was unclear whether he would receive public housing, whether any new accommodation should take into account a young son, whether in future he might need a larger accommodation than proposed, and whether he might want new accommodation that was less sophisticated than proposed), so the Seagroatt J adopted the more reserved approach of the defendant and rounded up “their suggested figure up to $1,000,000 as being more likely to reflect economic reality” (at p.872).  The judgment does not indicate any Valuation Expert Evidence by surveyor.

78.  Ms Lau submits there has been a sea-change in approach after Seagroatt J’s criticisms in Wong Hin Pui of excessive and indiscriminate use of experts in personal injury litigation.  In that case, the learned judge referred to excessive, expensive and unjustified use of occupational therapists in personal injury cases when essential matters come  within orthopaedic and/or neurological expertise, and “…… practical problems can adequately be dealt with by rehabilitation consultants and nursing advisers” (at p.874).  

79.  Mr Wong seizes upon the above observation to suggest that Seagroatt J was limiting his criticisms to occupational therapy expert evidence.  I disagree for the learned judge went further to remind that use of experts in “areas of damage, care and provision” (my emphasis) should be limited to what was necessary (at pp.874-875):

“ 57. It is incumbent upon all counsel, both senior and junior, to exercise detached and practical judgment when it comes to deciding what areas of damage, care and provision actually need expert evidence and to be satisfied that what they seek is actually expert evidence. An indiscriminate obtaining of reports, provides for any judge, an enormous amount of reading before he is able to decide to what extent the contents of reports are relevant and essential. He or she ought to be able to rely on counsel exercising a degree of judgment which reduces the material to that which is necessary, and counsel should impute to the judge, whoever he or she may be, a degree of understanding of life, of disability and of what it is necessary to compensate in principle.

58. …… The time is now ripe for the court to exercise a controlling hand far earlier than I thought was necessary if practitioners are not prepared to look hard and fast at the case of the person they represent and ask themselves – “What do we really need in the way of expert evidence, and what can we ask the defendants to agree at an early stage?””

80.  In Lee Suk Yin and Chan Yuet Lui Rebecca (which were decided in September 2001 and January 2002 respectively), there is no specific reference to Valuation Expert Evidence by surveyor.

81.  In Fung Kwok Ki v Wing Sang Construction Co Ltd [2003] 3 HKLRD 201, 214-215 (which was decided in August 2003), the plaintiff, who was permanently wheelchair-bound, lived with his family in a HOS flat.  The experts advised that he required a larger accommodation to convenience his moving about at home amongst other things.  From a list of prices relating to units of varying sizes from the Midland Realty website, the court noted the range of “asking prices [of landlords] of the rental value from that list” and took “the lowest from that range as the basis for assessing alternative accommodation” (at p.214). From that basis the notional rental value of the plaintiff’s then living expenses was deducted, and a multiplier was applied to give the rental expenses for the alternative accommodation.  Further, the court dealt with incidental expenses (eg agency fee, legal cost of tenancy agreement and stamp duty) and alteration/removal costs on a pragmatic basis, and applied appropriate multipliers thereto.

82.  In Cham Cheung Sing v Yung Pak Wa [2007] 3 HKLRD 33, 52 (which was decided in June 2007), there was no dispute that the plaintiff, who had no effective movement below the neck except limited shoulder movement, required larger accommodation.  He claimed that the monthly rental for his new accommodation was less than that of 750 sq ft flats in Shaukeiwan, and he was willing to give credit for his current public housing monthly rental.  The court also allowed agency fees and adaptation costs on the assumption that he might need to change accommodation once every two years.  There was no reference in the judgment to any Valuation Expert Evidence, and the plaintiff’s expert reports on quantum were in fact confined to those by experts in neurology, orthopaedics and nursing/rehabilitation (at p.47J).

83.  In Chang Sui Man, the plaintiff was paraplegic and wheelchair-bound.  His application for obtaining a surveyor’s report on the market rents of alternative accommodation was refused by a master.  The learned judge dismissed his appeal and said as follows:

“ 11. Ms Lee submitted that it is rare to call for surveyor report on the market rent since the available of transaction records on the internet.

12. Mr Lam, for the Plaintiff, submitted that a surveyor report is necessary to consider wheelchair accessible buildings in the Chai Wan area.

 13. Wheelchair access has been part of the building specifications since the early 1980’s, and most except older buildings have wheelchair access. Rents are usually related to age of the building and size of the flat, and not wheelchair access. Fair compensation could be based on the range of rental figures for suitable district and floor areas where the Plaintiff could then look for the building with wheelchair access. The Plaintiff could obtain the rental figures from the internet. Minute investigation of sample flats is not necessary. Hence, the surveyor’s report is refused.”

84.  In Tsang Kwong v Wing Hing Air-Condition Engineering Limited HCPI 729/2007, Bharwaney J (unreported, 3 December 2010), the learned judge refused the plaintiff’s application for a supplemental report from Mrs Chow on whether or not (a) it was reasonable for the plaintiff to be provided with damages to cover rental expenses of a terraced house in Fairview Park and (b) it would be of benefit to him to have a terraced house with an open garden.  The learned judge noted that Mrs Chow had set out in her report the size of the alternative accommodation required, and went on to say as follows:

“ 8. It has been the practice for some time for parties concerned with such claims to obtain evidence of the rental cost of premises. Much of that evidence is available on the internet and posted by reputable estate agents, and although they tend to show the area in gross square feet as opposed to usable area, Ithink the general consensus seems to be that one has to take off about 20 to 25per cent off the gross to make the conversion from gross to usable area, and in fact much of that evidence has been submitted to me in the defendant’s skeleton submissions, where the prices of different premises have been set out.

  9. The plaintiff could easily obtain similar evidence in respect of the rental of an appropriate unit in Fairview Garden and put that evidence before the trial judge for him to decide whether or not it is fair and reasonable to allow the additional rental difference of a terraced house.”

85.  In Fung Chun Man, the plaintiff applied for leave to adduce expert evidence in clinical psychology at trial.  In discussing the relevant legal principles for expert evidence in personal injury cases, after referring to Liddle v Middleton [1996] PIQR 36 and Wong Hin Pui, the learned judge noted that substantial increase of expert evidence, particularly in personal injury cases, drew judicial criticism, and that “[the] clampdown on expert evidence on liability in personal injury cases extended to cover non-medical expert evidence on quantum issues, such as evidence from …… property surveyors” (at para.5).  Bharwaney J said that after the implementation of the Civil Justice Reform (“CJR”), in deciding whether to grant leave, the court must ensure that expert evidence is admitted only if it is likely to be of real assistance to the determination of the issues, and that it is adduced in the most effective and economic way consistent with the objectives of the CJR (at para.11).  In a nutshell, “the expert evidence must be in a recognised discipline, reasonably required to enable the court to resolve the issues in dispute, and proportionate” (at para.15).

86.  In deciding whether Valuation Expert Evidence is relevant, necessary and of probative value in the present proceedings, I note that the judgments in Ng Kwok Wing and Ng Chi Chung were handed down more than 10 years ago (see paragraphs 75-76 above) when cost-free and publicly accessible property-related data from the Websites was still a thing of the future.  Hence, litigants in those early personal injury cases sought to adduce Valuation Expert Evidence by surveyor to establish the rental or purchase value of suitable alternative accommodation in the private sector.

87.  Nowadays, the test of relevance, necessity and probative value for Valuation Expert Evidence for the purpose of assessing damages for alternative accommodation in personal injury litigation must be applied in the modern context of increased availability and ready accessibility of property-related data posted on the Websites.  In particular, the criterion of “necessity” must be considered in light of the warning in Wong Hin Pui against unjustified expert evidence when there is no real need (see paragraphs 78-79 above) and the CJR objectives of proportionality, effectiveness and economy (see paragraph 85 above).  The subsequent authorities (see paragraphs 81-85 above) show that in personal injury cases both the litigants and the court have in fact moved with the times by considering and adopting cost-free and publicly accessible electronic property-related information as relevant evidence for claims for provision of alternative accommodation.

88.  The ability to evolve and adapt to modern developments is one of the strengths of civil procedure under the common law system.  In my view, any blinkered approach that insists on adhering to the evidentiary approach in Ng Kwok Wing and Ng Chi Chung without giving adequate consideration to modern developments is unhelpful.

(b)  Recommendations by the Rehab Experts

89.  Irrespective of whether the cost for providing alternative accommodation is to be assessed on a rental or a purchase basis, selection of potential suitable alternative accommodation that substantially meets the recommendations by Ms Tsang and Mrs Chow respectively (see paragraphs 24-25 above) is part of the relevant exercise.  Mr Wong says that Valuation Expert Evidence is required for such purpose, but Ms Lau says it is not.

90.  Mr Wong criticises the worth of property-related information posted by property agencies on their Websites when such information do not show whether any building is wheelchair accessible or whether any unit has direct lift access (see paragraph 23(a) above).  He says that even a few steps at the lobby level may amount to a substantial physical barrier to the Plaintiff who is wheelchair-bound.

91.  I am not persuaded by such argument.  The downloaded website information exhibited to the Lai Affidavit has building floor plans that clearly show whether the units on any floor has lift access and further show the number of lifts that service any floor.  Anyway, most except older buildings with only a few storeys are serviced by lifts.  It is unlikely for any multi-storey building of more than a few storeys to be without lifts, and I note that in the SOD the Plaintiff claims for alternative accommodation in a multi-storey building.

92.  As regards any physical barrier at ground floor lobby level, I need go no further than to refer to the common sense observation by Fung J in Chang Sui Man (see paragraph 83 above).  Wheelchair access has been part of building specifications since the early 1980s and most except older buildings have wheelchair access.  As explained in paragraphs 53-58 above and as recognised by Fung J in Chang Sui Man, the court in providing for the cost of alternative accommodation in personal injury cases does not dictate that the plaintiff must actually buy or rent a particular property, but rather it assesses a fair compensation that will enable him to reasonably acquire rented or purchased alternative accommodation as necessitated by his injuries. Since (as Fung J pointed out) wheelchair accessibility or otherwise does not significantly affect value, such fair compensation can be awarded on the basis of value figures for units within suitable districts with suitable floor areas, and the plaintiff can then look for a building with wheelchair access.  Even if identifying a particular building with wheelchair accessibility is significant and/or even determinative, such information can usually be elicited from the Websites that show photographs of buildings and their vicinity.  Still further, such concern can be satisfactorily addressed by making brief inspection visits to the few identified buildings or estates chosen by the party and/or taking a few photographs of the lobby level.

93.  Mr Wong refers to Lee Suk Yin in which the learned judge stated as follows:

“102. The defendant accepts that the 3^rd 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.”

and suggests that it is probably due to problems with wheelchair accessibility that the two buildings were ruled out by Ms Flora Lee.  I find such contention unsustainable.  First, the learned judge made clear that he would not go into the reasons for ruling out the two building estates. It is nothing but speculation to blame it on wheelchair accessibility.  Secondly, the court in ruling out the two building estatesin Lee Suk Yin did not rely on Valuation Expert Evidence by surveyor.  It is well known that Ms Flora Lee is an expert in nursing and rehabilitation (see Cham Cheung Sing at p.47J) and not a surveyor with expertise in valuation of property.

94.  Mr Wong next says that the Website information posted by property agencies do not show whether a unit (a) is free of architectural barriers and/or (b) has sufficient internal space for wheelchair mobility. He submits that it is preferable that the unit should have no corridors and the doors should be wide enough for a wheelchair to pass through.  He also postulates the possibility of altering the main bedroom in any suitable unit by carving and building an ensuite bathroom within such main bedroom so as to meet the recommendations by the Rehab Experts.

95.  Again, I am not persuaded by such argument.  I do not understand why any suitable alternative accommodation should not have corridors.  The possibility of corridors has been envisaged by the Rehab Experts, and they have allowed for such space in assessing the minimum required net usable space of the alternative accommodation (see paragraph 24 above).  In any event, the building floor plans available on the Websites will show whether any flat has any corridor or not.

96.  Mr Wong has not been able to explain why a unit that does not have ensuite bathroom amounts to suitable alternative accommodation given that both Rehab Experts agree that ensuite bathroom is appropriate (see paragraph 24 above). I also cannot fathom why the plaintiff or the court will wish to contemplate a property without ensuite bathroom and then investigate the possibility and costs of the substantial alteration work required to create an ensuite bathroom out of the main bedroom, and not simply look for property with ensuite bathroom.  Even if the 1^st and 2^nd defendants wish to contend that a flat without ensuite bathroom can amount to suitable alternative accommodation despite Mrs Chow’s recommendations, all the parties need to do is simply to widen their selection of properties from the Websites to premises with two bathrooms based on the layout in the floor plans shown on the Websites.

97.  The Rehab Experts have set out in detail in the Rehab Report the required number of rooms/areas in respect of suitable alternative accommodation, which has culminated in their suggestions for the total minimum required net usable space for the plaintiff.  In Tsang Kwong, Bharwaney J recognised that property-related data on the internet posted by property agencies tend to show floor area in terms of gross area as opposed to usable area, and he endorsed the realistic and pragmatic approach (which usually is the approach for assessing damages in personal injury claims) of taking about 20-25% off the gross floor area to make the conversion from gross to usable area.

98.  Indeed, the floor plans of buildings available on the Websites as exhibited to the Lai Affidavit clearly show the gross floor area (from which the usable area can be ascertained in the above manner) and the layout (which can be compared with the layout proposed by the Rehab Experts) of each unit, and on some floor plans the measurements are also available (eg the floor plan of Hong Keung Court).  In my view, this goes a long way to show whether potentially suitable flats identified from the Websites will provide sufficient space for the plaintiff.  But there is more.  The Rehab Experts has in fact envisaged that properties on the market may not precisely meet all of their recommendations, and they have therefore jointly recommended home modifications (eg widening of doorways, levelling of thresholds, modification of the toilet/bathroom, etc) to be supervised by an occupational therapist to ensure sufficient space for wheelchair mobility in different parts of any alternative accommodation (see paragraph 25 above).    I bear in mind that the court’s function is to ascertain a fair compensation for providing suitable accommodation and not to carry out precise valuation of a particular flat at a particular time.

99.  Mr Wong complains there are no precedent cases in which the court has accepted property-related information downloaded from the Websites as sufficient evidence that the identified flats are able to satisfy the criteria established by the rehabilitation experts.  I do not see why this should deter the parties and the court in this case from considering whether such information is helpful to the court in assessing damages for providing alternative accommodation.  Indeed, the wealth of property-related information available on the Websites (see paragraph 61 above) should encourage the litigants and the court to consider and harness their usefulness in personal injury litigation.

(c)  Transaction records

100.  Mr Wong submits that only completed transaction records (instead of asking price/rental) can reflect market price/rental of properties, which is the only relevant value for assessing damages for alternative accommodation (see paragraph 64 above). He claims that material downloaded from the Websites exhibited to the Lai Affidavit merely contains asking price/rental by potential vendors/landlords.

101.  But such observation is not entirely correct. In fact, material downloaded from Websites exhibited to the Lai Affidavit contain property-related information from completed sale and purchase transactions including the transaction date, the property address, the actual sale/purchase price, the size of the property, the price per sq ft, and the source of such information (which is mainly from the Land Registry).

102.  It is only in relation to the rental value of properties that the Websites display the asking rental by potential landlords in the market and not the agreed rent in tenancy agreements made between landlords and tenants.  But the asking rental is not irrelevant and should not be ignored, and it certainly does not follow that Valuation Expert Evidence is therefore required.  Indeed, in Fung Kwok Ki the court relied on the asking rental of potential landlords as the basis for assessing the cost for providing alternative accommodation (see paragraph 81 above).

103.  Mr Wong submits that notwithstanding judicial observations in Fung Kwok Ki and Chang Sui Man that suggest rental figures from the Websites can be adopted as the basis for assessing damages for providing alternative accommodation, the court may not accept sale/purchase prices downloaded from the Websites to establish the purchase value for alternative accommodation.

104.  I have difficulty in understanding why the court should not refer to the purchase price and other particulars of recently completed sale and purchase transactions drawn from Land Registry records and summarised on the Websites when, as shown in Fung Kwok Ki, the court is prepared to accept mere asking rental of properties that are put on the market for letting for the purpose of assessing the value of alternative accommodation.  I am persuaded that the Websites provide adequate information on the market price of properties, especially the purchase price of completed transactions drawn from Land Registry records.

105.  Mr Wong submits that for the rental market, even the Lai Affidavit accepts that there is no record of tenancy/letting transactions for certain buildings (eg Hong Keung Court – see paragraph 31(c) above), so it is against common sense for the 1^st and 2^nd defendants to argue that the court can rely on property-related information from the Websites.

106.  It is the plaintiff’s case that suitable alternative accommodation is a present need.  She also does not dispute that the property-related information on the Websites are up to date and updated promptly and regularly by the property agencies. If there is no record of tenancy/letting or sale/purchase transactions in respect of a certain building or no current offers for letting/sale, it means that flats in such building are not on the market. That being the case, it is difficult to envisage how such properties can be regarded as suitable alternative accommodation for the plaintiff whose intention is to move into and reside at the new accommodation.

(d)  Adjustment of value

107.  Mr Wong submits that it is essential when considering comparables to make adjustments to the prices in the transaction records to account for, say, differences between floor levels, size, orientation, tenancy at sale and time of transaction.  He further anticipates that a surveyor will compare the value, saleable area and location of different estates, and opine on whether the rental/purchase value has appreciated or depreciated during the time between transactions (see paragraph 65 above).  Mr Wong further submits that in assessing damages to provide for alternative accommodation on a rental basis, it is necessary to have Valuation Expert Evidence on further appreciation of rent “although it is in [his] submission very difficult, if not impossible to assess”.

108.  First, given the analysis in paragraphs 53-58 above, I am not persuaded that fine adjustments of the prices shown in the sale/purchase transaction records or of the asking rentals shown on the Websites are required in assessing damages for providing alternative accommodation in personal injury litigation in contra-distinction to determining the market or rental value of a particular property at a particular time in other civil claims.

109.  Secondly, property-related information drawn from the Websites has the distinct advantage of being regularly updated so the parties will be able to adduce up to date information on the rental/purchase value of potentially suitable alternative accommodation.  This largely compensates for any need to adjust any dated rental/purchase value to arrive at the current value.

110.  Thirdly, as explained in paragraph 106 above, if there are no sale/purchase transaction records of properties in a certain building/estate or if there is no available offer to let properties of a certain building/estate, there seems little point in considering such properties even if their physical layout, size and accessibility meet the plaintiff’s needs.  The plaintiff can hardly consider buying or renting any property which is not on the market.

111.  Fourthly, even Mr Wong acknowledges that it is very difficult if not impossible to assess rental over the plaintiff’s lifetime. I am not persuaded that such imponderable justifies any need for Valuation Expert Evidence.

112.  For all of the above reasons, I am not persuaded by Mr Wong’s arguments.

(e)  Reliability of Website information

113.  The plaintiff suggests that the accuracy and reliability property-related information on the Websites are doubtful (see paragraph 66 above).  But apart from a bare assertion, there is no evidence in support of such contention.

114.  As seen from the authorities referred to above, eg Fung Kwok Ki, the court actually relied on property-related information from the Midland Realty Website (see paragraph 81 above).  Bharwaney J in Tsang Kwong referred to rental information “available on the internet and posted by reputable estate agents” (my emphasis) (see paragraph 84 above).  Moreover, the Websites give prices from completed sale and purchase transactions drawn from Land Registry records.  As regards the asking rentals, it is common knowledge that property agencies act for potential landlords in putting properties on the market for letting, and they necessarily have firsthand knowledge of the asking rentals.  In all the circumstances, I am not persuaded that the plaintiff’s complaint can be supported.

(f)  Timing and cost

115.  Mr Wong submits that it is not costly to commission valuation expert report and/or for surveyor expert(s) to give evidence, and such cost is proportionate to the claim for alternative accommodation which may be for millions of dollars. But I note that property-related data from the Websites can be downloaded at no cost.  

116.  Further, I agree with Ms Lau that the volatile nature of the property market in Hong Kong can be addressed by the property agencies’ practice of regularly updating the website data (see paragraph 62 above).  Such updated information is cost-free and easily downloaded for production at the Assessment.  The plaintiff’s answer of having an initial valuation expert report and a supplemental one about a month before the Assessment (see paragraph 67 above) will certainly escalate costs.  In my view, such Valuation Expert Evidence is unnecessary in view of the useful factual data available from the Websites, and in light of the CJR objectives of efficiency and economy.

(g)  Abundance of information

117.  Mr Wong suggests that the court will be overwhelmed by computer printouts of property-related data from the Websites, so it is preferable for surveyors to distill the primary information and present their concise opinion for the court’s consideration (see paragraph 66 above).

118.  I am not persuaded that with the wide case management powers given to the court after the CJR the court will allow itself to be inundated with evidence that is ineffective, unnecessary and overwhelming for the judge or master hearing the Assessment.  The plaintiff in her witness statement has identified the localities in which she wants to live and given her reasons for choosing such districts.  She has also identified some buildings/estates in such localities, and the 1^st and 2^nd defendants have also done so in the Lai Affidavit.  There is no reason why the parties cannot agree on a shortlist of relevant localities and focus on a limited number of potentially suitable estates/buildings within such localities.  If there is any disagreement, there is no difficulty in seeking appropriate case management directions, including directions for limiting the number of suitable districts and/or buildings/units and for updated information to accompany the Revised Statement of Damages and the Answer thereto and/or, where appropriate, nearer in time to the Assessment.

(h)  Summary

119.  For all of the above reasons, I am not persuaded that Valuation Expert Evidence by surveyor is necessary, relevant or of probative value for the court to assess damages for provision of alternative accommodation, and I decline to grant leave for the plaintiff to adduce such expert evidence.

XI.  ARCHITECT OR STRUCTURAL ENGINEER

120.  Almost at the end of his submissions, Mr Wong suggests that it is relevant and necessary to have expert evidence on whether any particular wall or partitioning within potentially suitable alternative accommodation can be altered for the home modifications recommended by the Rehab Experts.  But such expert evidence (if required at all) concerns the physical state and not monetary valuation of any identified property.  Mr Wong accepts that such expertise should fall within the skill and experience of an architect or structural engineer rather than a surveyor with expertise in valuation of properties. As such, Mr Wong’s suggestion falls outside the scope and ambit of the Issue.

121.  Nevertheless, Mr Wong made an oral application at the Hearing for leave to adduce expert evidence from an architect or structural engineer on the feasibility of home modifications to any identified accommodation. Understandably Ms Lau has been surprised by this turn of events, but she has risen to the occasion by making a spirited objection.  On careful consideration, I agree with Ms Lau that such further expert evidence is unnecessary.

122.  First, both Rehab Experts have set out their common opinion on the home modifications (as well as the relevant costs) necessary to meet the plaintiff’s needs, and they concur that such home modifications should be supervised by an occupational therapist for a reasonably modest fee.  There is no disagreement between the Rehab Experts on these matters.

123.  The above suggests that the Rehab Experts have the skill and expertise to advise on and that the occupational therapist has the skill and expertise to supervise the proposed home modifications. Indeed, the occupational therapist from the NP Inn has advised the plaintiff on modifications to the Home (see paragraph 17 above).  But with their skill and experience in these matters, there is no suggestion that any structural elements should be altered/modified or that an authorised person is required to oversee the proposed home modifications.  In my view, none of the home modifications suggested by the Rehab Experts appear to be structural in nature.  For any potential need to slightly widen internal doorways, Mr Wong has not explained how any partition wall that already has an opening for a doorway or, more precisely, how the few inches of partition wall at the rim of a doorway can be a load-bearing structural element.

124.  Since both Rehab Experts agree on the nature and cost of the home modifications, and further since the court is not looking for a particular property that the plaintiff must actually buy but instead is assessing damages that broadly reflect the cost of providing alternative accommodation with size and layout suitable for the plaintiff, I find that expert evidence from an architect or structural engineer is not relevant, necessary or of probative value.

XII.  CONCLUSION

125.  In the circumstances, I decline to grant leave for the plaintiff to adduce Valuation Expert Evidence in this case, and resolve the Issue against the plaintiff and in favour of the 1^st and 2^nd defendants.

126.  There is no reason why costs should not follow event. I therefore grant a cost order nisi that the plaintiff do pay the 1^st and 2^nd defendants’ costs of the Issue (including all costs reserved, if any) to be summarily assessed, and there be legal aid taxation in respect of the plaintiff’s own costs.  As regards the summary assessment of costs, I grant the following directions:

(a)   if no application is made to vary the above costs order nisi within 14 days from today, the 1^st and 2^nd defendants do within 21 days from today lodge and serve their statement of costs pursuant to Practice Direction 14.3;

(b)   the plaintiff do within 7 days thereafter lodge and serve his summary of objections to such statement of costs for not more half page in bullet point format (“Objection Summary”);

(c)    if application is made to vary the above costs order nisi within 14 days from today, both parties do within 21 days from today lodge and serve their respective statement of costs pursuant to Practice Direction 14.3 and within 7 days thereafter respectively lodge and serve his/their Objection Summary to the other party’s statement of costs;

(d)   the 1^st and 2^nd defendants do within 21 days from today fix a date with the Listing Clerk for the hearing of the summary assessment of costs to be heard before me in chambers (open to the public) on a date not before 42 days from today with half hour reserved;

(e)    if application is made to vary the above costs order nisi, such application shall be heard at the same time as the hearing for the summary assessment of costs.