CHAM CHEUNG SING v. YUNG PAK WA AND OTHERS

HCPI 206/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 206 OF 2003

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

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

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

J U D G M E N T

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

1. This is a personal injury action arising from a “slip and fall” accident, which took place on 1 April 2001.

A.  Background

A1.  The parties

2. The plaintiff was born in Hong Kong on 16 December 1952 and educated up to primary level.  He was married in 1992 and has a daughter who is now aged 13.  He used to work as a labourer for the Hong Kong Government.  Since 1980, he had been working as a self-employed taxi driver, earning about HK$12,500 per month at the time of the accident.

3. By a tenancy agreement dated 22 May 1997, the defendant rented Ground Floor and Mezzanine Floor (“the Cockloft”) of Shop B, Wing Wah Mansion, Nos.26, 28 and 30, Kam Wa Street, Shaukeiwan, Hong Kong (“the Premises”) from Yip Hung Ngan, Kwong Chung Yu and Jay Kwong Chung Chee (collectively “the Landlords”) for four years commencing on 1 May 1997.  The defendant had since operated at the Premises a restaurant known as the “328 Kitchen” (“the Restaurant”).

A2.  The Premise

4. As noted, the Premises consisted of the Ground Floor and the Cockloft.  At all material times, a metal staircase, which was the only access, joined the Ground Floor and the Cockloft.  The Staircase was about two feet wide.  It was quite steep with a handrail running along one of its sides.  According to the defendant, the Staircase was already there when he took up the Premises.

5. The licence for operating a restaurant at the Premises was first granted by the licensing authority to one Yiu Yun Cheung on or about 5 October 1990.  The licence was granted in respect of the Ground Floor only subject to a set of licensing requirements and conditions (“the Licensing Conditions”), inter alia, these conditions :

“44. The G/F shall be completely and substantially segregated from the cockloft which is not under application for licence.  There shall be no means of internal access whatsoever.

45.  The restaurant shall be completely and substantially segregated from the illegal structure over the rear yard.  There shall be no means of the internal access whatsoever.”

6. Eventually, after successive transfers, the defendant became the licensee on 4 August 1997.  When he applied for the transfer, the defendant by a letter dated 16 July 1997 undertook to the licensing authority that he shall abide by all the licensing conditions.

7. It is beyond dispute that the Cockloft never formed part of the licensed premises and that the Staircase, which constituted a breach of the above licensing conditions, was at all material times an illegal structure.  However, it is the defendant’s case that he did not know that the Cockloft did not form part of the licensed area.

8. Incidentally, another illegal structure existed in the Premises but nothing turns on it for present purposes.

A3.  The accident

9. On 1 April 2001, the plaintiff together with his family and friends patronized the Restaurant.  The Ground Floor was full.  So they were shown to the Cockloft.  They occupied a table and were served dishes of food and bottles of beer by a waitress of the Restaurant.  After dinner, the plaintiff left the Cockloft through the Staircase at about 10 p.m.  It is his case that he slipped and fell at the top of the Staircase and tumbled down to the bottom on the Ground Floor.  As a result of the fall, he suffered serious head and spinal injury and was rendered tetraplegic.

A4.  The actions

10. On 25 February 2003, the plaintiff commenced the present action (HCPI 206/2003) against the defendant and two other individuals and one limited company who were, on the plaintiff’s case, the transferees of the defendant’s business.  Eventually, his claim against the two individuals was discontinued by consent order dated 19 May 2006.  And the plaintiff is unable to pursue the said company because it had been deregistered on 19 February 2006.

11. The plaintiff also commenced HCPI 222/2004 against the Landlords and HCPI 290/2004 against another transferee of the defendant’s business.  HCPI 222/2004 had been settled whereas HCPI 290/2004 had been dismissed by consent.

12. Thus what is left outstanding is the plaintiff’s claim against the defendant in the present action.  (The defendant is not legally represented.  Presumably, it is because the insurer of the public liability insurance policy that he took out (“the Insurance”) had denied liability : see letters from the insurer’s solicitors to the defendant dated 1 February and 9 May 2002.)

B.   The parties’ pleaded case

13. The plaintiff first set out how the accident took place and then pleaded that after the accident and while he was lying unconscious on the Ground Floor, the defendant and/or his servants lifted him up and dragged him towards or to the back alley of the Restaurant to wait for an ambulance without first having supported or immobilized his neck thereby causing him further injury and/or aggravated the spinal injury had had sustained as a result of the fall.

14. The plaintiff went on to plead that the accident was caused by the defendant’s negligence and/or his breach of common duty of care under the Occupiers’ Liability Ordinance, Cap.314.

15. The plaintiff claimed loss and damage in the tune of HK$13.4 million.

16. In his homemade defence, the defendant pleaded a number of matters.  Insofar as liability is concerned, the defendant alleged that the plaintiff and his friends went up to the Cockloft by themselves.  He seemed to have pleaded that the plaintiff fell on the Ground Floor.  (This point is confirmed when he conducted cross-examination of the plaintiff.)  He also raised the defence of contributory negligence in that the plaintiff was drunk at the time of the accident.  He also seemed to have denied that after the accident he had dragged the plaintiff to the back alley to wait for the ambulance.  He alleged that he helped the plaintiff up under the armpits while the plaintiff’s wife assisted by carrying his feet.  The location of the accident was about four metres from where the plaintiff sat while waiting for the ambulance.

17. The defendant has not filed any answer to the revised statement of damages or adduced any evidence on quantum.  Indeed, at the pre-trial review on 28 May 2007, he told the court that he would not take any issue on quantum.

C.   Witnesses

18. The plaintiff gave evidence and called four witnesses : his wife, Mrs Cham Palai (“Mrs Cham”), Mrs Tong Chau Chiu Chu (“Mrs Cham”), Mr Tong Wai Hung (“Mr Tong”) and Mr Cheung Hoi Wing (“Mr Cheung”).  (Mr Cheung was originally the 3^rd defendant in the present action.)

19. The defendant gave evidence but called no witness.  He sought to rely on a statement dated 5 January 2005 given by one Law Huen Ling (transliteration) (“Ms Law”), a waitress who worked during that very night of the accident, to the loss adjuster appointed by the insurer to investigate the accident (“Ms Law’s Statement”). 

20. I will first consider the question of liability.

D.   Liability

D1.  Three preliminary points

21. Before proceeding further, I would like to dispose of three preliminary points.

22. The first point relates to the use of the Cockloft, which came from the uncontroverted evidence of Mr Cheung.  Since 1993, Mr Cheung had been working at the Premises for the defendant’s predecessors.  All along, the defendant’s predecessors had been using the Cockloft to serve customers.  Usually, customers would be shown to the Cockloft when the Ground Floor was full.  A sliding iron door was installed at the entrance of the Staircase at the Ground Floor.  When health inspectors came to inspect, it would be closed, concealing the entrance of the Staircase.  After the defendant took over the Premises, Mr Cheung continued to work for him.  And the defendant continued to use the Cockloft to serve customers and the sliding door as before.  Mr Cheung agreed with the suggestion of the defendant that workers from other restaurants came to the Cockloft at night time for snacks after work. But as I understand his evidence, it does not mean that the Cockloft was only used for that limited purpose.  I have no doubt and find that the defendant had habitually used the Cockloft as part of the Restaurant when the Ground Floor was full.

23. The second point relates to the defendant’s allegation that he did not know that the Cockloft did not form part of the licensed area.  This allegation is not directly relevant to the question of liability but sheds light on the defendant’s credibility.

24. In his oral evidence, the defendant alleged that at the time of the accident he did not know that the Cockloft was not part of the licensed area.  When he acquired the licence, his predecessor misled him into believing that the Cockloft fell within the licensed area.

25. I am unable to accept the defendant’s allegation.  There is a wealth of evidence which demonstrates beyond doubt that he was fully aware of the fact that the Cockloft did not form part of the licensed area.  First, the application for transfer from his predecessor signed by the defendant only covered the Ground Floor, leaving no possible room for the alleged misrepresentation.  Second, by letter dated 4 August 1997, the licensing authority notified the defendant that his application for transfer was granted and enclosed a set of layout plans.  According to the layout plans, the licensed area was the Ground Floor only.  The defendant alleged that he had not received the said letter.  Plainly, he made this up as he went along.  Third, in the Business Registration Certificate dated 6 August 1997, the defendant stated that the restaurant was in respect of the Ground Floor only.  He tried to disavow the Certificate by alleging that he just copied it from some other document without knowing what it meant.  Again, he was clearly making it up as he went along.  Fourth, the Insurance that he took out was in respect of the Ground Floor only.  Fifth, the defendant had submitted successive revised plans in respect of the licensed area before the accident took place.  The layout plans so submitted referred to the Ground Floor only.  Finally, it is only reasonable to infer, and I so infer, from Mr Cheung’s evidence on the surreptitious existence and use of the Staircase that the defendant knew that the Cockloft was unlicensed.

26. In my view, the defendant denied that he knew that the Cockloft was unlicensed because he wanted to evade liability, although it does not hinge on his knowledge at all.

27. The third point is whether the plaintiff was a lawful visitor at the time of the accident.  It is a point raised by the defendant in his defence and Ms Law’s Statement, although he did not really pursue it at trial.  I will nevertheless deal with it for completeness.

28. As noted, the defendant pleaded that the plaintiff and his party went up to the Cockloft on their own, thus implying that they were not lawful visitor to the Cockloft.  He had no personal knowledge on this matter and had to rely on the statement of Ms Law’s Statement.

29. I will attach no weight to Ms Law’s Statement, which has not been tested under cross-examination.

30. The evidence of the plaintiff and Mr Tong is that the two of them and their children first went to the Restaurant at about 7 p.m. that evening.  The Ground Floor was full.  A waitress then directed them to go up to the Cockloft.  Their evidence is reasonable and consistent with how customers were received when the Ground Floor was full according to Mr Cheung’s evidence.  I accept their evidence. 

31. Further it is not disputed that throughout the night, the plaintiff and his party were served with food and beer at the Cockloft.  The only inference is that they had implied permission to remain at the Cockloft and use the Staircase, which is the only access between the Ground Floor and the Staircase.  (In passing, I note that it is the defendant’s evidence that he left the running of the Restaurant during night time to his employees.  See paragraph 64 below.  I have grave doubt about his allegation.  But even if it were true, it only shows that the defendant must have given his employees authority to serve customers at the Cockloft.  This allegation does not assist him a bit.)

32. I accordingly find that the plaintiff was at all material times a lawful visitor at the Cockloft.

D2.   The defendant’s duty of care

33. I now turn to consider the defendant’s duty of care as occupier towards the plaintiff as his visitor.

34. The plaintiff relies on negligence and the common duty of care under the Occupiers Liability Ordinance, Cap.314 (“OLO”).  Mr Leung, appearing for the plaintiff, accepted that the two causes of action would rise and fall together.  (Indeed, the pleaded particulars of negligence and the breach of the common duty of care under OLO are just the same.)  I think Mr Leung must be right.  The position of the common law of negligence and the statutory common duty of care under OLO is, in the present context, the same.  A discussion of the latter (applicable to the former as well), which Mr Leung undertook in his written closing submissions, is sufficient.

35. Section 3 of OLO provides that :

“	(2)	The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he was invited or permitted to be there.
	…
	(4)	In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances…”

36. The common duty of care is more than a duty to avoid negligence acts, but extends to negligent omissions as well.  Not only must the occupier avoid creating danger himself : he must also take reasonable steps to protect his visitors from dangers which he did not himself create : see Clerk & Lindsell, 19^th edn, para.12-25 at pp.751-752.

37. How an occupier should discharge his duty of care inevitably varies according to the circumstances of the case.  Here, the defendant owed a general duty of care to his customers using the Staircase to ensure that it was safe as an access and egress to and from the Cockloft.  He should exercise a reasonable degree of care and vigilance, which must commensurate with the need to abate the risk and danger attendant upon the Staircase bearing in mind :

(1)   It was the only access to the Cockloft.

(2)   It was rather steep and narrow.

(3)   The safety, propriety and suitability of the Staircase as an access to the Cockloft had not been assessed and approved by any of the authorities involved in granting the restaurant licence.

In particular, the defendant should ensure that the Staircase was clean, that it was not rendered slippery by reason of presence of water or deposit of greasy deposit such as food residue and that it was not cluttered with objects such as carton boxes that might obstruct people walking up and down the Staircase and caused them to stumble.  He should employ adequate measure so as to ensure that the Staircase was clean and not slippery and that it was free from such obstructing objects.  He should also impose sufficient warning notice at both landing of the Staircase as to the risks and danger attendant upon the Staircase.

38. He owed the aforesaid duties to his customers irrespective if the Cockloft was unlicensed or he did not know that the Cockloft was unlicensed.

39. I now turn to the parties’ evidence.

D3.    Evidence

40. The main issues are :

(1)   How and where did the plaintiff slip and fall?

(2)   Was he drunk when he fell?

(3)   What happened after he fell and before the ambulance arrived?

(4)   Was there sufficient warning sign warning against wet or slippery surface of the Staircase?

(5)   What measure had the defendant employed to ensure that the Staircase was not rendered slippery or obstructed by objects?

41. It is important to note at the outset that the defendant readily admitted did not have any personal knowledge as to how the accident happened.  He again relied on Ms Law’s Statement.  But it did not assist him a bit for Ms Law did not describe how the accident took place at all or assert that the plaintiff was drunk at the time.  Thus although during cross-examination, the defendant did suggest to the plaintiff and his witnesses that the plaintiff actually slipped and fell on the Ground Floor and that he was drunk, the defendant has failed to adduce any evidence to substantiate those allegations.

42. The evidence adduced by and for the plaintiff is in summary this.

43. That evening, the plaintiff and Mr Tong with their children went to the Restaurant first.  They arrived at about 7 p.m.  As the Ground Floor was full, they were directed to the Cockloft.  There they occupied a table near the top of the Staircase.  They then ordered some snacks and some bottles of beer.

44. At about 8 p.m., Mrs Tong arrived.  Mrs Cham came minutes later.  Food and some more bottles of beer were ordered.  The adults shared the beers among themselves.  The plaintiff drank about one to two bottles.  He stressed that he had not drunken beyond his normal drinking capacity.  Mrs Cham, Mr and Mrs Tong all said that he was not drunk.

45. After the dinner at about 10 p.m., they left the Cockloft.  Mrs Cham together with the children was the first to leave.  The plaintiff then followed.  When he was at the brink of the Staircase and took the first step to walk down, he slipped and fell.  He rolled and fell down to the bottom of the Staircase on the Ground Floor.  He was then left unconscious.

46. The plaintiff did not know why he slipped and fell.  Mrs Cham, having gone down already, did not eye-witness his fall and was therefore unable to tell why.

47. Mrs Tong was right behind the plaintiff when he fell.  She said it happened very suddenly.  He slipped and fell forward.  As he fell, she noticed that he raised his arms as if to grab for support but to no avail.  In so doing, he knocked off some boxes of preserved eggs placed on the left hand side at the top of the Staircase.  She and Mr Tong, who was right after her, then went straight downstairs to check if the plaintiff was hurt.  In panic, she did not check to see if there was anything specific on which the plaintiff had slipped.  However, earlier that evening, she noticed that the Staircase was damp and found squashed food scraps on the Staircase.  She was not surprised because the Cockloft was crowded and the waitress serving there brought food and drink up and down the Staircase all evening.

48. Mr Tong saw the plaintiff slipped but did not see how he fell down the Staircase.

49. Both Mr and Mrs Tong said that before his fall, the plaintiff was not drunk and was able to walk straight.

50. There were minor discrepancies in the evidence of the plaintiff and his witnesses.  For example, Mrs Cham said she arrived at the Restaurant at about 8:30 p.m., which did not exactly tally with the evidence of others.  This is however immaterial.  The total number of bottles of beer ordered by the party that evening ranged from four (on the plaintiff’s account) to six (on Mr Tong’s account).  This is again of little significance.  The important point is : did the plaintiff drink beyond his normal capacity and was he drunk at the time?  The plaintiff and his witnesses remained adamant under cross-examination that he was not drunk.

51. I find the evidence of the plaintiff and his witnesses cogent and consistent.  They were not shaken under cross-examination.  I accept their evidence as to how and where the accident took place and that the plaintiff was not drunk at the time.

52. On the question if the plaintiff was drunk, I need to deal with this point for completeness.  After the accident, the plaintiff was sent to Pamela Youde Nethersole Eastern Hospital (“PYNEH”).  The Head Trauma Case Sheet contained remarks : “Drunken at night 2200 after 2 bottles of beer” and “Intoxicated Strong Smell of Alcohol”.  At a first glance, these remarks seemingly contradict the plaintiff’s case that he was not drunk.  However, it is undisputed that the plaintiff only regained full consciousness seven hours after admission to PYNEH.  While he was unconscious, it was impossible to verify if he was drunk at the time.  In the circumstances, I am of the view that the remark that he was intoxicated is no more than a subjective speculation by the medical officer attending him.  I will not attach any weight to it.  I prefer the clear and cogent evidence of the plaintiff and his witnesses that he was not drunk.

53. I next consider what happened to the plaintiff after the fall.  As will be seen in a moment, this has an important bearing on the injury that he suffered.

54. It is the evidence of Mrs Cham and Mr Tong that after the accident, the defendant put his arms under the plaintiff’s armpits and dragged him to the back alley to wait for the ambulance.  The defendant asked Mr Tong to grab a chair for the plaintiff to sit on, which he duly complied.

55. The defendant admitted in his defence that he was involved in assisting the plaintiff to get to the back alley by holding his armpits.  However, he alleged when cross-examining Mrs Cham and Mr Tong, he alleged that the plaintiff was still conscious after the fall, that Mrs Cham and Mr Tong first helped the plaintiff to stand up, that he only took over from Mr Tong in assisting the plaintiff to get to the back alley and that Mrs Cham was also involved in holding the plaintiff’s legs.  These allegations Mrs Cham and Mr Tong all denied.

56. I have carefully considered the evidence.  I accept the evidence of Mrs Cham and Mr Tong.  I reject the defendant’s.  I find him an untruthful and unreliable witness.  I have no doubt that he made up the aforesaid allegations in order to shift the blame to others.  In passing, it is the evidence of Mrs Cham and Mr Tong, which I accept, that after the accident the defendant asked them to tell the police that the plaintiff fell on the Ground Floor.  I have no doubt that the defendant made that suggestion hoping that it might enable him to resort to the Insurance later.

57. It is Mr Tong’s evidence that that evening he saw a warning sign near the bottom of the Staircase warning against wet floor.  But there was no such sign at the top of the Staircase.  The defendant said he had put up warning signs all over the Restaurant.  Again, I accept Mr Tong’s evidence and reject the defendant’s.

58. The defendant denied that carton boxes were placed at the top of the Staircase when the accident happened.  But I accept the evidence adduced by the plaintiff that it was in fact the case.

59. Finally, the defendant had not adduced any evidence on what measure that he had employed to ensure that the Staircase was not rendered slippery or no objects would be placed there to obstruct the users.  I find that there was none.

D4.  Other miscellaneous points

60. The defendant sought to rely on some other miscellaneous points.  For completeness, I will deal with them briefly as follows.

61. First, it is not in dispute that the plaintiff had suffered two traffic accidents in 1998 and 2000.  The one in 1998 was very minor and was of no consequence.  In the other in 2000, the plaintiff was hit by a vehicle, lost his conscious and was sent to the hospital.  He was discharged on the following day.  His health was not affected by either of those traffic accidents.  He continued to work as a taxi driver up to the time of the accident in question.  I can see no relevance of those two traffic accidents at all.

62. Second, the defendant alleged and Mr Cheung accepted under cross-examination that no accident happened before since he took over the Premises.  That may well be so.  But it is no more than a factor but only a limited one.  For long immunity from accident did not prove absence of carelessness : see Cathay Pacific Airways Ltd v. Wong Sau Lai [2006] 2 HKLRD 586, para.35.

63. Third, it seemed that the defendant himself thought that the Staircase was not inherent dangerous.  His subjective belief is irrelevant.  Irrespective of his subjective belief, he owed to the users of the Staircase set out in paragraph 37 above.

64. Fourth, it is the evidence of Mr Tong that on the night in question, the defendant was working and serving customers.  The defendant said that at the time of the accident, he was resting in the room on the Cockloft.  He went on to allege that he left the running of the Restaurant to his employees at night time.  Again, I am of the view that the defendant so alleged in order to evade liability.  I accept Mr Tong’s evidence.

65. Fifth, the defendant suggested that the plaintiff was a frequent patron of the Restaurant, thereby implying that the duty owed to him was somewhat lower.  The plaintiff and Mrs Cham said that they had been to the Restaurant once or twice before the accident.  Mrs Cham further said on 1 April 2001, it was the first time that she went up the Cockloft.  I accept their evidence.  In any event, the fact that a visitor had been to the premises in question before is irrelevant to the duty of care required of the occupier : see Lau Shui Chun v. Leung Tung Metal Factory Ltd, HCPI 75/1997, unreported, Suffiad J, 7 October 1998.  At best, it is probably a factor in the consideration of contributory negligence.  But I do not need to consider this point here as it is not the defendant’s case that the plaintiff’s alleged contributory negligence had anything to do with his previous visits to the Restaurant.

66. Finally, the defendant alleged that after the accident, he went to PYNEH that night and overheard Mr Tong telling a doctor in the presence of Mrs Cham that the plaintiff was in bad mood and had drunk some beer in the afternoon.  Mr Tong denied that he had said such thing to any doctor.  Mrs Cham said she had not seen the defendant at the hospital at all.  She also denied the suggestion that the defendant had asked her for telephone number so that he could contact her in the future.  Again, I reject the defendant’s version and accept the version of Mr Tong and Mrs Cham.  In any event, what the defendant had alleged is immaterial.

D5.  Conclusion

67. For the above reasons, I find that the defendant had breached his duty of care both at common law and under OLO by failing to ensure that the Staircase was safe to be used as an access to and egress from the Cockloft.  It was damp and rendered slippery by deposits of food residue.  Cartoon boxes were placed at the left hand side at the top of the Staircase.  Only a set of handrail was installed on one side the Staircase.  No warning sign was posted up at the top of the Staircase warning against wet or slippery surface.

68. I find that the plaintiff slipped and fell at the top of the Staircase because the surface was slippery.  The accident was caused by the defendant’s breach of duty.

69. I also find that the plaintiff was not drunk and was not guilty of any contributory negligence as alleged.

70. Finally, I find that it was the defendant who alone dragged the plaintiff to the back alley after the accident while he was still unconscious without first having supported or immobilized his neck.  I accept the submission of Mr Leung, appearing for the plaintiff, that common sense dictates that the 1^st defendant ought not have dragged the plaintiff to the back alley and it was foreseeable that the mishandling of the plaintiff in such a way was likely to aggravate his injury.  Indeed, according to Dr Yu Yuk Ling (“Dr Yu”) (Neurologist), this dragging incident materially contributed to the spinal cord injury that the plaintiff suffered.  And I so find.

71. I now come to the question of quantum

E.   Quantum

72. As noted, the defendant did not seek to dispute quantum.

73. That said, the plaintiff still has to make good his claims.  In this regard, he relies on, inter alia, the report of Dr Yu dated 20 October 2003, the report of Dr Lau Hoi Kuen (“Dr Lau”) (Orthopaedic), and the reports of Miss Flora Lee (Nursing and Rehabilitation) dated 30 January 2002 and 23 May 2007.

E1.   Injuries

74. Prior to the accident, the plaintiff enjoyed good health and was working normally as a taxi driver.  He was fully ambulatory and independent in his daily living and activities.  He looked after his daughter and attended to family matters.

75. As a result of the accident, he plaintiff sustained severe head and spinal cord injuries.  He regained full consciousness about seven hours after the accident.  He was initially admitted to PYNEH.  On 25 May 2001, he was transferred to MacLehose Medical Rehabilitation Centre.  On 30 July 2001, he was transferred back to PYHEH for surgical repair of the sacral pressure sore.  He was discharged on 18 October 2001.  Since discharge, he has been regularly attending follow-up treatment at the Ortohpaedic Clinic at PYNEH. 

76. The plaintiff was granted sick leave between 1 April 2001 and 6 July 2002.

77. The plaintiff had no effective movement below the neck except limited shoulder movement.  Impairment of the whole person was assessed at 98% by Dr Lau and 97% by Dr Yu.  The plaintiff’s major complains are :

(a)  no movements in the four limbs;

(b)  complete paralysis, unable to stand, wheelchair bound and bed bound;

(c)  sensory disturbance of upper limb and below the upper thorax with impaired temperature sensation, numbness and hyperaesthesia;

(d)  pain after sitting for 15 minutes;

(e)  sacral pressure sores;

(f)  double incontinence;

(g)  sexual impotence;

(h)  psychiatric disturbance, depression and adjustment disorder; and

(i)  totally dependent in his activities of daily living.

78. During the most recent examination by Miss Flora Lee, it was found that the plaintiff has overcome dizziness arising from postural hypotension and can tolerate sitting out for two to three hours.

79. The plaintiff suffers from adjustment disorder.  He is not interested in participating in social or outdoor activities due to his pain.  In fact, he has not participated in any social activity since the accident.  Mrs Cham observed that he was depressive and irritable.  I accept Mr Leung’s submission that this is a sign of social withdrawal.

80. The plaintiff is concerned that he will be a burden to his family although he would like to be taken out, for instance, for a meal.

E2.  Pain, suffering and loss of amenities

81. There can be no doubt that the plaintiff’s injury falls within the Disaster Category.  The plaintiff claims HK$2,000,000 for PSLA, which I accept as reasonable.  This head of damage will be so assessed accordingly.

E3.  Loss of society and loss of ability to provide gratuitous services

82. I accept Mr Leung’s submission that because of the catastrophic injury suffered by the plaintiff, the loss of society to Mrs Cham is of the most devastating kind.  I will award the statutory maximum of HK$150,000 under section 20C(1) of the Law Amendment and Reform (Amendments) Ordinance, Cap.23 (“LARCO”).

83. Before the accident, the plaintiff used to be a loving and caring father with an intimate relationship with his daughter.  He took care and supervised her after work.  Because of his injuries and irritability, his relationship with his daughter is strained.  He also provided handyman services at home.  Given the young age of the daughter and the plaintiff’s devotion to the family, I agree with Mr Leung’s submission and award HK$100,000 under section 20C(4) of LARCO.

E4.  Interest for Items E2 and E3

84. The interest for the above three items is assessed at 2% per annum from date of writ to the date of trial.  The amount is HK$2,250,000 x 2% x 4.2 years = HK$189,000.

E5.  Past pecuniary losses

85. There are all together six items under this head.

          (1)  Past loss of earnings

86. As noted, the plaintiff used to earn about HK$12,500 per month.  But he uses HK$10,000 as the rate to allow for the occasional downturn of business.  The total loss to the date of trial is HK$10,000 x 74.2 months = HK$742,000.  I will allow this in full.

          (2)  Medical expenses incurred to date of trial

87. These expenses are all supported by receipts.  The total sum incurred is HK$26,376.  It is allowed in full.

          (3)  Accommodation, travelling and ancillary expenses

88. The plaintiff was admitted to the Szetoy Home for the Aged between for 12 months between October 2001 and 2002.  The monthly expense is HK$6,000, rendering a total of HK$6,000 x 12 months = HK$72,000.  I will allow it in full.

89. The plaintiff attended follow-up treatments at PYNEH.  The estimated traveling expense is HK$50/visit x 108 days = HK$5,400.  While he was hospitalized, Mrs Cham and the daughter paid him daily visit.  The estimated traveling expense is HK$5,271.50.  These traveling expenses are reasonable.  I will allow them in full.

90. The total amount allowed under this head is HK$84,496.50.

          (4)  Value of care provided by Mrs Cham

91. While the plaintiff was hospitalized at PYNEH between 1 April 2001 and 18 October 2001, Mrs Cham visited him almost daily to look after him.

92. On 18 October 2002, the plaintiff moved to Szetoy Home for the Aged in Shaukeiwan because there was not enough space at his previous home in Ming Wah Da Ha, a public housing estate in Shaukeiwan.  Subsequently he was allocated a 350 square feet public housing unit in Shaukeiwan in May 2002 on compassionate grounds, which he took up in October 2002.  Since then he was mainly looked after by a Thai domestic helper.  Mrs Cham resumed normal work as a sales lady but continues to provide care for the plaintiff when she is not at work.

93. As a guideline, the commercial rate for such care provided by Mrs Cham would be the ceiling : see Ta Xuong v. Incorporated Owners of Sun Hing Building [1997] 4 HKC 171 at p.182A-B.

94. The daily rate for a health care assistant is HK$525.  The plaintiff applies half of that rate to the period between 1 April and 18 October 2001, which comes to (HK$525 x ½ x 201 days =) HK$52,762.50.  As from 19 October 2001 to the date of trial, he claims HK$3,000 per month and arrives at (HK$3,000 x 67.5 months =) HK$202,500.

95. Given the dedication and care provided by Mrs Cham, these sums are all reasonable.  I will allow them in full.

          (5)  Miscellaneous losses and expenses incurred

96. Under this head, the plaintiff claims the costs of employing the Thai domestic helper between October 2002 and the date of trial, inclusive of basic salary, food, utilities and expenses incidental to the employment.  (See Tz Xuong, supra, at p.185E).  He claims HK$6,000 per month and arrives at (HK$6,000 x 56.2 months =) HK$337,200.

97. He next claims other miscellaneous expenses including electric wheelchair, catheter, diapers, shower chair, air cushion mattress, urine bag, tonic food and Chinese herbal pill totaling HK$48,166.

98. These expenses are all reasonable and hence are allowed in full.

          (6)  Interest on past pecuniary losses

99. Applying half of the judgment rate of 10.75% up to the date of trial, I will allow the interest claimed as follows :

(1)  past loss earnings, HK$246,377;

(2)  medical expenses incurred, HK$8,758.02;

(3)  accommodation, traveling and ancillary expenses, HK$227,990.23;

(4)  value of care provided by Mrs Cham, HK$84,758.64; and

(5)  miscellaneous losses and expenses incurred, HK$127,958.85.

100. I next turn to the items of future pecuniary losses.

E6.  Future pecuniary losses

          (1)  Future loss of earnings

101. The plaintiff uses the same monthly figure of HK$10,000 for past loss of earnings as the multiplicand for future loss of earnings.

102. As to the multiplier, the plaintiff’s evidence is that but for the accident, he would have worked beyond the normal age of retirement, that is, 65 to the age of 70.  Mr Leung cited a number of authorities and persuaded me to accept a multiplier of 9.  I need not dwell on the cases.  I accept that a multiplier of 9 is reasonable.  The amount allowed under this head is therefore HK$10,000 x 12 x 9 = HK$1,080,000.

          (2)  Future costs of care

103. It is convenient to deal with the life expectancy of the plaintiff first.

104. Dr Lau took the view that the plaintiff’s life expectancy would be reduced because of possible health complications but “the better medical care in this era helps to lengthen patient’s survival”.  Dr Yu opined that the plaintiff would live 17 additional years from age 50.  (He examined the plaintiff in 2003 when he was 50.)  Dr Yu relied on the projection give in Table 14-3 in the article of Samuel Stover entitled “Long Term Survival and Causes of Death” (1995).  The author himself however warned against over simplifications.  The life expectancy of non-ventilator dependent patients (of which the plaintiff is one) may be underestimated.  The projected figures have not taken into account medical advancement for prevention of complications.

105. Mr Leung referred me to Chan Pui Ki v. Leung On [1996] 2 HKLR 401 and submitted that applying the mathematical approach will give a life multiplier of 11.  Given the plaintiff’s condition and the possible medical advancement, he submitted that a life multiplier of 13 is reasonable.  I agree.

106. It is the consensus of the experts that the plaintiff needs two carers, probably one domestic helper and one health care assistant or at least two domestic helpers.

107. Mr Leung asked me to take into account that the plaintiff needs to be mobilized by at least two persons, that his susceptible to complications such as pressure scores and urinary tract infection and that Mrs Cham is working and will not return home until after 10 p.m.  He submitted that it is reasonable to provide for one live-in domestic helper and one health care assistant working 12 hour shift at HK$525 per day.  I agree.

108. As to the costs of employing a domestic helper, Mr Leung submitted although the basic monthly salary is now fixed at HK$3,400, a monthly salary of HK$3,670 is reasonable.  Other expenses incidental to employment need to be added.  And applying a multiplier of HK$13, he arrived at HK$1,238,120.  This is allowed in full.

109. As to the costs of the health care assistant, the sum allowed is HK$525 x 365 x 12 = HK$2,491,125.

110. The plaintiff no longer pursues the value of care provided by Mrs Cham under this head.

          (3)  Future medical expenses

111. I have read the breakdown of the medical expenses including the costs for speech therapy, psychotherapy and physiotherapy.  They are all reasonable and I will allow this item in full, which is HK$509,687.

          (4)  Health and social aids and equipment

112. I do not need to dwell on details.  The plaintiff claims HK$117,195.  It will be allowed in full.

          (5)  Medical consumables

113. I will allow in full the amount claimed, that is, HK$86,687.

          (6)  Future costs on transportation and socialization

114. The plaintiff claims HK$2,000 per month for transportation allowance and the total is HK$2,000 x 12 x 13 = HK$312,000.  For leisure and socialization, he claims HK$1,000 per month and arrives at HK$1,000 x 12 x 13 = HK$156,000.  The claims are allowed in full.

          (7)  Alternative accommodation and ancillary expenses

115. The general consensus among the experts is that the plaintiff needs a larger accommodation because of his injury and rehabilitative needs.  Bulk equipments, such a hospital bed, wheelchairs, shower chair, are required.  An alternative accommodation of about 750 square feet is in order.  The monthly rental of flats of this size in Shaukeiwan is about HK$14,000 to HK$15,000.  However, the plaintiff only claims HK$11,032 as monthly rental and will give credit to the rental of current public housing monthly rental.  It has come down to HK$2,180 but the plaintiff is prepared to give credit for the previous rental of HK$2,280.  The amount claimed under for monthly rental is HK$1,365,312.  The plaintiff also claims for agency fees in the sum of HK$77,224 and adaptation costs of HK$700,000.  These figures are premised on the assumption that the plaintiff may need to change accommodation once every two years.  

116. I will allow this head in full.

          (8)  Case manager

117. I agree that it is necessary to engage a case manager to monitor the progress of the plaintiff regularly.  Each visits costs HK$800 and four visits are anticipated every year.  The total claimed under this head is HK$41,600.  It is allowed in full.

F. Conclusion

118. In sum, the quantum claimed (as adjusted by Mr Leung in his closing submissions), that is, HK$12,528,093.74 is allowed in full.  I will give credit to the defendant for the settlement sum of HK$2,500,000 obtained by the plaintiff in HCPI 222/2004.  I will therefore enter judgment against the defendant in the sum of HK$10,028,093.74.  I will further make an order nisi that the defendant to pay the plaintiff the costs of the action, including any costs reserved, to be taxed if not agreed.  And the plaintiff’s own costs will be taxed in accordance with the legal aid regulations.