YAP KIOUE GIONG AND OTHERS v. NG YAN PING ALEX AND ANOTHER

HCPI 543/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 543 OF 1999

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J U D G M E N T

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1. This is an assessment of damages in respect of serious and multiple injuries to a lady bus passenger in December 1997. The bus was in collision with a dumper truck owned by the 2nd Defendant and driven by the 1st Defendant. Liability was admitted by the Defendants in July 1999. The claims of two co-Plaintiffs have already been settled.

2. This lady was 56 years of age at the time she sustained her injuries. She is now 58. She was employed as a part-time cleaner, part-time domestic assistant and as a tutor/carer for young children. She was educated at a university on the mainland and photographs of her taken before the accident show her as a vivacious, attractive woman. She is married with two children, the younger, a daughter of 22 years, is still living as home. Her husband is now 71 years of age.

Pain and suffering and loss of amenities.

3. Her head and facial injuries included a fracture of the right fronto-parietal bone of the vault of the skull, the right orbit, sphenoid, zygoma and maxillary antrum. There was also an extradural haemorrhage. She has had two operations on her facial injuries. She will probably have to have another at some stage.

4. She is left with flattening of the right orbital cheek and temporal region. The operation to reconstruct this area was not a complete success. Her right eyeball is somewhat sunken, the lower eyelid is uncomfortable and her tear duct is damaged. She has had and remains vulnerable to kerato-conjunctivitis. Diplopia persists. The right eye appears lower than the left.

5. As a consequence of the head injury she has a persisting post-concussional syndrome which has nonetheless improved. There has also been improvement in her headaches, dizziness, impaired concentration and memory and insomnia. Her depression has also improved. Her sensory impairment and the post-concussional syndrome will be permanent.

6. There was a supracondylar fracture of the right humerus and a fracture of the capitellum (elbow region). The degloving injury to her right hand required a muscle skin flap graft which is unsightly.

7. She has degenerative change in the right shoulder, elbow and hand. She has significant restriction of movement in the upper right limb and although physiotherapy will probably improve its range of movement there is permanent substantial impairment of this limb. There were also fractures of her 3rd, 4th and 5th ribs. Residual pain may last for some years. There is a degree of deformity in the healing.

8. Fractures of the left superior and inferior public rami have healed reasonably well. A bone graft was taken from her left iliac crest. Unfortunately it was carried out with likely damage to a nerve. Numbness has resulted and this is expected to be permanent.

9. The cosmetic disability resulting from all these injuries is not confined to the consequences of the facial fractures. The graft to the hand has left unsightly puffiness, scarring and discoloration. The scar, 20 centimetres in length, in her scalp is fortunately hidden by hair. Scarring of her right elbow, left upper arm (extensive donor site), and left groin (donor site) are also of concern to her.

10. She can do no manual work. Although physiotherapy will produce some improved mobility she will experience some prolonged pain and discomfort as she undergoes this. She may at some stage be able to take up English tuition again but this is I think dependent upon her psychological well-being in the main but her diplopia and her persistent pain and discomfort may well make any expectation unrealistic.

11. Although only 58 she clearly shows the effect of this broadly spread catalogue of severe injuries. The range of damages contended for extents from $1 m. on the part of the Plaintiff to $650,000 on the part of the Defendants. Counsel for both parties have moved somewhat in order to reflect the stances they adopt. I consider the proper figure to be $850,000.

Pre-trial loss of earnings.

12. Her pre-accident earnings are agreed at $5,000 per month or $60,000 per annum. For this period, 27.5 months, there is no issue between the parties. The award will therefore be $137,500.

Future loss of earnings.

13. There is disagreement both as to the multiplicand (the monthly rate) and the multiplier (the number of years purchase reflecting accelerated receipt, uncertainties of life including the economic climate and the possibility of the Plaintiff actually obtaining some remunerative work).

14. I think that there should be some increase on the 1997 figure, but a modest one. For example the demand for English tuition seems to be increasing. Part-time work as a domestic helper seems to be paid on a slightly higher rate. I will take a multiplicand of $5,200 per month = $62,400 per annum. She may have carried on some of this work after 65. Her husband would then be 78 and unlikely to be gainfully employed. Hers would be the only income for them. I will allow a multiplier of 5. The total is therefore $312,000.

Part-time domestic help.

15. I have no doubt she needs this. Hitherto she has relied upon the wife of a cousin to help out with shopping and household chores. No claim was made for that until today. Although there is clearly a basis for it, it was in my view too late and since in particular this was an assessment, it would conflict with the whole purpose of a Statement of Damages and Answer - which is to clarify for each side precisely what is claimed - and I declined to allow such a last-minute addition. However I make it clear that I accepted the Plaintiff's evidence on this. She could not have done without such assistance.

16. Mr Clough on behalf of the Defendants has put to her that she can continue to rely upon this relative by marriage. Helpful and loyal though relatives are I do not think that such a possibility is satisfactory. It would in effect be a favour relied upon, whatever form of recompense is made. This lady needs a domestic help on a properly paid and dependable basis. For twenty hours per week the yearly cost (at $60 per hour) will be $62,400. What multiplier is appropriate? This is a necessary service for whole life. I ought to bear in mind that given her serious disabilities, as she grows order she will become more dependent upon the domestic helper and there may be a need for more hours. At 58 years of age now she has a life expectancy in Hong Kong of at least 20. In my view 14 would not be excessive and the sum allowed will be $873,600.

Pre-trial medical and associated expenses.

These have been agreed at	$11,716
for hospitals and clinics;
for Chinese cultural practitioners and special food:	$35,301
for travelling expenses:	$35,211
for medical aids	$3,353
for damaged clothing	$1,998
The total is:	$87,579
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Future medical and allied care.

Orthopaedic treatment:
This is agreed at	$25,000
Neurological treatment:
This is agreed at	$12,800
Ophthalmological/oro-maxillary treatment
This is agreed at:	$45,000

Psychiatric treatment.

17. Miss Christina Lee for the Plaintiff has, rightly in my view severely pruned the extent of the treatment recommended by Dr Singer. Not only has there been some improvement according to her neurologist but in my view the provision of domestic help, the easing of her financial position and an end to medical assessments will further ease the position. The extent of the treatment suggested encourages in my view a dependency upon psychotherapists and psychiatrists, whereas in fact an end to scrutiny, litigation and uncertainty enables otherwise robust people to get on with their lives rather than have frequent recourse to practitioners. The fact that this lady has coped as well as she has with these debilitating injuries suggests that she is not seeking more aids than she actually needs. I am sure a well-planned holiday will add immeasurably to her outlook.

18. Mr Clough suggests a lower figure (of $30,000) than Miss Lee's ($50,000). This provides for 12 as opposed to 20 sessions over the coming year or so. For the reasons I have set out above, I think the lower allowance is more appropriate. I will allow $30,000.

Occupational therapy and physiotherapy.

19. The real need here is physiotherapy to help bring back some mobility to the right arm and hand though I bear in mind that the elbow and shoulder now have significant degenerative change and the wrist has disuse osteoporosis. I question the extent to which physiotherapy can bring about improvement though there will certainly be some. Much will depend upon the Plaintiff's tolerance of the pain and discomfort involved. I am very sceptical of the suggestions for occupational therapy in this case. There is much duplication in Miss Alice Tsang's suggested provision. Again Miss Lee has wisely pruned this. Mr Clough has countered with a suggestion of $50,000 to cover both aspects. I think his figure is realistic and does justice to the Plaintiff.

20. In my view Ms Tsang has clearly duplicated the therapy. I do not accept that occupational therapy as defined by her in this case is appropriate. The report also traverses other areas of treatment, recommended by her, which are not in fact necessary for this lady. There was an occupational therapy report by Josephine Wong of the Occupational Therapy Department of the Prince of Wales Hospital dated November 1999. It is a sensible factual report confining itself to the essentials of occupational therapy. The Plaintiff had attended that Department until September 1999. I have read many reports by Miss Josephine Wong. The are concise, relevant, and easily digestible. I advise practitioners once again to think carefully and hard before indulging the luxury of reports in the form of manuals, copiously illustrated and very expensive which go far beyond the essentials and trespass into the areas of other experts. They simply add to the unnecessary cost and excessive reading material.

21. The equipment and materials selected by Miss Lee are reasonable and I allow them. To be fair to Mr Clough he does not seriously dispute them. They total $27,887 and are allowed at $25,000 as I think they are more durable than is thought.

Summary.

Pain and suffering etc.	850,000
Pre-trial loss of earnings	137,500
Future loss of earnings	312,000
Future part-time domestic help	873,600
Pre-trial medical and associated expenses	87,579
Future medical and associated care cost:
Orthopaedic	25,000
Neurological	12,800
Oro-maxillary	45,000
Psychiatric/Psychotherapy	30,000
Physiotherapy (and occ. therapy)	50,000
Equipment	25,000
22. Total:	2,448,479
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There will be judgment for the Plaintiff for $2,448,479 with costs. Interest on the relevant items is also due at the appropriate rates to be calculated.