EPIFANIO CANDEL RBASTO v. CHAN KING YUN JAMES

HCPI 42/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 42 OF 2012

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J U D G M E N T

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1. On 1 July 2010 the plaintiff was playing basketball at a basketball court in Victoria Park when he was assaulted by the defendant and hit over the head.

2. As a result of the assault the plaintiff sustained severe head injuries.

3. The plaintiff sues the defendant for damages by his wife and next friend Virgie Datuin Gloria Arbasto (“Virgie”).

4. As no notice of intention to defend was given by the defendant, interlocutory judgment was on 12 March 2012 entered for the plaintiff against the defendant for damages to be assessed and for costs to be taxed.

5. This is the trial of the assessment of damages.

6. The plaintiff was a young man in good health at the time of the assault.  He was 43 years old at that time. He is now 46 years old.

7. The plaintiff is married to Virgie whom he married in 1994. The plaintiff and Virgie have twin daughters who were born in Hong Kong in July 1999.

8. The plaintiff is from the Philippines. At the time of the assault on him, he was employed as a domestic helper with driving duties by Alex Clavel (“Clavel”) and his family in Hong Kong. Virgie, who is also from the Philippines, was also employed by Clavel and his family as a domestic helper in Hong Kong.

9. I heard evidence from Virgie and Clive Wolstencroft (“Wolstencroft”). I also heard evidence from Dr Kan Yiu Ting (“Dr Kan”). There was also in evidence the hearsay statement of Clavel. 

10. I have no hesitation in accepting the evidence of Virgie, Wolstencroft, Dr Kan and Clavel.

11. The plaintiff sustained very serious injuries as a result of the assault on him.

12. Dr Kan, who is a neurosurgeon, in his report dated 12 November 2012 gave his expert opinion after examining the plaintiff on 21 October 2012 in the Philippines. Dr Kan’s evidence was unchallenged and I have no hesitation in accepting his testimony.

13. Dr Kan set out the medical history of the plaintiff after the assault on him in his report dated 12 November 2012. The medical reports that Dr Kan referred to have also been unchallenged.

14. The evidence shows that the plaintiff was admitted into Pamela Youde Nethersole Eastern Hospital, after a brief assessment at Ruttonjee Hospital, where he was found to have a Glasgow Coma Scale (“GCS”) score of 10/15. CT scanning showed a skull fracture in the fronto-parietal region, subarachnoid hemorrhage and left acute subdural hematoma (“ASDH”). CT angiography showed no aneurysm and CT cervical spine revealed no fracture.

15. The plaintiff underwent an emergency operation where external ventricular drainage (“EVD”) for monitoring and controlling intracranial pressure (“ICP”) was performed. The ICP was noted to be high at operation and continued to be so. Repeated CT scanning showed diffuse cerebral edema and increase in ASDH with mass effect. Another emergency operation was performed: decompressive craniectomy and evacuation of ASDH. Post-operatively he was managed in ICU with therapeutic sedation, ventilation and control of ICP.

16. The post-operative course was, however, complicated by repeated bouts of pneumonia. Trial of extubation on 9 July 2010 failed because of sputum retention. Tracheostomy was performed on 14 July 2010. The plaintiff was later weaned off from the ventilator and discharged to a general ward where he stayed briefly as he developed respiratory distress due to sputum retention and had to be returned to ICU on 18 July 2010. He was again ventilated and had bronchoscopic toilet performed.

17. He was finally taken off the ventilator and transferred to Tung Wah Eastern Hospital for convalescence on 11 August 2010. He was semi-conscious with GCS score of 10/15 , with no following of command, aphasic, severely weak in the right limbs (Grade 1-2/5) and mildly to moderately weak in the left limbs (Grade 3 or higher).

18. CT scan of the brain on 6 September 2010 showed hydrocephalus with dilated ventricles. He was returned to Pamela Youde Nethersole Eastern Hospital for ventriculo-peritoneal shunting on 9 September 2010. After confirmation of a decrease in ventricular size he was again sent back to Tung Wah Eastern Hospital for rehabilitation on 12 September 2010. The limb power was at that time Grade 0/5 on the right and Grade 4/5 on the left.

19. The further clinical course was complicated by over-shunting which was treated by adding an anti-siphon device on 12 October 2010. The cranial bony defect was repaired on 11 November 2010. Apparently, the phenomenon of over-shunting continued which prompted ligation of the shunt on 20 November 2010.

20. The plaintiff was finally discharged from Tuen Mun Eastern Hospital on 5 December 2010 in a totally dependent state of incomplete consciousness, total aphasia, feeding through naso-gastric tube, double incontinence and dense right hemiplegia.

21. He was cared for by his wife Virgie who worked as a domestic helper for Wolstencroft and his family who also kindly provided accommodation for the plaintiff and Virgie.

22. However, in February 2011 Virgie decided to move back to the Philippines as it was felt that it would be easier for her to care for the plaintiff there.

23. As is set out in Dr Kan’s report, on returning to the Philippines, the plaintiff was assessed in a hospital from 19 February to 27 February 2011 by a neurosurgeon Dr Yumul in the Philippines. A rehabilitation program was advised and scheduled, including physiotherapy and trial of feeding through the mouth.

24. By March 2011, the plaintiff managed to get rid of the naso-gastric feeding tube and was able to take adequate amount of food orally, although he had frequent choking on taking fluid.

25. There is no doubt that the plaintiff is totally dependent on Virgie and his family in performing the activities of daily living.

26. At the time of Dr Kan’s examination of the plaintiff, although fully conscious, the plaintiff did not possess full awareness of the environment, or appreciation of the presence of family or other people. He was unable to express his needs or desire either by words or gestures. He showed no interest in the activities around him. There was no display of emotions. Although there was residual motor function in the limbs, he did not have the motivation to employ them in any useful way other than scratching himself occasionally.

27. He was totally aphasic. There was no indication that he understood the spoken or written words.

28. Although he was able to eat solid foods, he often choked on fluids.

29. He was doubly incontinent and did not indicate fecal or urinary needs.

30. His right limbs were densely paralysed and the left limbs were weak. He had no independent ambulation.

31. On Dr Kan’s examination of the plaintiff, the plaintiff showed little spontaneity of movement in the right limbs which showed some withdrawal or avoidance movement when pain was applied giving Dr Kan the impression that the power was at least Grade 3/5, i.e. able to act against gravity. Although the left limbs displayed full or nearly full power (Grade 5/5 or 5/-5), there were only very infrequent spontaneous movements, largely non-purposeful ones.

32. I also had the benefit of viewing the video taken in October 2012 by Wolstencroft of the plaintiff being taken care of by Virgie and the family at the plaintiff’s home in the Philippines.

33. What Dr Kan said in his report is borne out by the video evidence. The video demonstrates clearly the difficulties and challenges faced by Virgie and her family in caring for the plaintiff in respect of his daily living activities and for his rehabilitation.

34. It is clear that the plaintiff has suffered devastating brain injuries as a direct result of the assault on him. As Dr Kan observed in his report, the cerebral contusion, swelling, intracranial hematoma and hydrocephalus have resulted in damage to the various faculties of the brain in cognition, emotion, speech as well as motor functions. The various impairments are in Dr Kan’s opinion, permanent. His impairments are fully set out in Dr Kan’s report.

35. It was Dr Kan’s view, which I accept, that the plaintiff has a reduction in life expectancy. It was his view, which I accept, that the plaintiff was expected to live, on the average, to the age of 71.90 years. 

36. Virgie also gave evidence, which I accept, of the way that she has been caring for the plaintiff since his discharge from hospital.

37. In her supplemental witness statement, Virgie gave evidence of some improvement in the plaintiff’s condition since Dr Kan examined him in October 2012. Dr Kan was not surprised by the improvement as mentioned by Virgie but he was of the view that the degree of improvement would not materially affect the impairment of the plaintiff which was permanent.

Pain, suffering and loss of amenities (“PSLA”)

38. I am satisfied that the plaintiff requires constant care and attention for the rest of his life. He is incapable of leading or appreciating an independent adult life. In my view, the plaintiff falls into the disaster category when assessing PSLA.

39. Awards for PSLA in the disaster category are from $1,150,000 upwards (Lam Chan Hung v Hang Yue Engineering Ltd [2013] 3 HKLRD 420 at para 52).

40. The plaintiff claims $2,000,000 for PSLA.

41. Mr Gidwani, for the plaintiff, relied on a number of authorities on PSLA including  Cham Cheung Sing v Yung Pak Wa & others (HCPI 206 of 2003, 20 June 2007), and Wong Kwun Sang by Yeung Chun Ha, his wife and next friend v Yiu Woon Ming & others (HCPI 633 of 2004, 28 November 2006).

42. In my view, the injuries sustained by the plaintiff in those authorities relied on by Mr Gidwani are more serious than the injuries sustained by the plaintiff in this action.

43. In my judgment, the proper award to the plaintiff for PSLA is $1,500,000.

Pre-trial loss of earnings

44. On the unchallenged evidence, which I accept, the plaintiff was earning $9,000 per month with $300 food allowance when working for the family of Clavel in Hong Kong. He commenced his employment with the Clavel family in 2006. But for his injuries sustained in the assault on him, it is clear that the plaintiff would have continued working for the Clavel family.

45. There is evidence that the plaintiff also received a total of $9,000 during the year 2009 as bonuses.

46. The Clavel family moved to live in Shanghai in November 2010 and because of this, the plaintiff’s employment was terminated by Clavel at the end of October 2010.

47. Clavel said that if the plaintiff had been fit to work then, subject to obtaining immigration approval for the plaintiff to work in the Mainland, he would have continued employing the plaintiff even after he was transferred to Shanghai.

48. I am satisfied that the plaintiff has lost his earnings in the monthly sum of $9,300 which was his salary and his food allowance. Pre-trial loss of earnings is to be awarded for the period from 1 November 2010 to trial, i.e. for 36 months.

49. The plaintiff is entitled to the sum of $334,800($9,300x36).

Loss of future earnings

50. According to the recent judgment of Bharwaney J in Chan Pak Ting v Chan Chi Kuen & another (HCPI 235 of 2011, 7 February 2013) and taking into account the Chan Tables 2013, it seems to me that the proper multiplier to adopt is 14 for loss of future earnings for the plaintiff.

51. The plaintiff is entitled to be awarded the sum of $1,562,400 for loss of future earnings ($9,300 x 12x14).

Pre-trial care and attention

52. I am satisfied that Virgie had to give up her employment as a domestic helper to care for the plaintiff. There is no doubt that the plaintiff requires constant care and attention and will do so for the rest of his life.

53. At the time of the assault on the plaintiff, Virgie was employed by Clavel with a monthly salary of $3,580 and a food allowance of $300. She then went to work for the Wolstencroft family until February 2011 when she returned to the Philippines with the plaintiff so that she could care for him there. She was paid her salary by the Wolstencroft family until June 2011.

54. She has lost her earnings from July 2011 until trial i.e. for 28 months. In my judgment the plaintiff is entitled to pre-trial care and attention being the equivalent of the loss of Virgie’s pre-trial earnings as she was caring full time for the plaintiff during that period. She had to give up her employment to do so.

55. I would award $108,640 ($3,880 x 28) under this head.

Future care and attention

56. I am satisfied on the evidence of Dr Kan that apart from Virgie caring for the plaintiff for the rest of his life, it is also reasonable for Virgie to hire two personal assistants each working in 8 hours’ shifts. On the evidence of Virgie, which I accept, this would cost a total monthly sum of PHP8,000.

57. Taking into account the ChanTables 2013 and bearing in mind the reduced life expectancy of the plaintiff to 71.90 years, I would adopt a multiplier of 19.

58. The plaintiff would be entitled to PHP1,824,000(8,000x12x19). This amounts to $328,320 (PHP1=$0.18).

59. The loss of future care and attention would therefore be the equivalent of the loss of future earnings for Virgie in the sum of $884,640 ($3,880x12x19) + $328,320 which amounts to the total sum of $1,212,960 under this head.

Future medical expenses

60. I am satisfied on the evidence that the plaintiff will require medication for the rest of his life. In Virgie’s supplemental witness statement she gives the cost of the medicines that the plaintiff is taking and I am satisfied that the plaintiff is entitled to claim this as future medical expenses. I am not satisfied that he is entitled to claim for the medication to lower his cholesterol which, on the evidence of Dr Kan, was unrelated to the injuries he sustained. The total cost of medicines that the plaintiff is entitled to claim for is a daily cost of PHP 68.25. Adopting the same multiplier of 19, the award for future medication is PHP 473,313.75 (68.25x365x19) which amounts to $85,196.

61. I am also satisfied that the plaintiff would  need to have medical consultations with his neurosurgeon in the Philippines which on average would be about 5 times a year at a cost of PHP 700 per visit. He would be entitled to PHP 66,500 (700x5x19) which amounts to $11,970.

62. The plaintiff would also be entitled on the evidence of Dr Kan to claim for physiotheraphy sessions at the frequency of 3 visits per week. The cost of each visit is PHP 600. The plaintiff would be entitled to claim PHP1,778,400 (600x3x52x19) which amounts to $320,112 for future physiotheraphy sessions.

63. He is also entitled to travelling expenses in the Philippines for his visits to his neurosurgeon which is estimated at PHP 3,000 per year. The plaintiff is entitled to claim PHP 57,000 (3,000 x 19) which amounts to $10,260 for travelling expenses.

64. The award for future medical expenses (including travelling expenses) is therefore $427,538.

Future aids and equipment

65. On the evidence I am satisfied that the plaintiff is entitled to claim for leg braces which have to be replaced every 1 to 2 years. The  cost of leg braces is PHP 8,000. He is entitled to claim PHP 76,000  (8,000 ÷2 x19) which amounts to $13,680.

66. I am also satisfied that he is entitled to claim for adult diapers which on the evidence cost PHP12 for each diaper. It is reasonable on the evidence for him to use 5 diapers per day. Thus he is entitled to an award of PHP 416,100 (12 x 5 x 365 x19) which amounts to $74,898 for this item.

67. On the evidence he is also entitled to claim for a ripple bed mattress to be replaced every year. The cost of each ripple mattress is PHP 23,000 and the plaintiff is entitled to an award of PHP 437,000 (23,000x 19) which amounts to $78,660 for this item.

68. I am satisfied that on the evidence he is also entitled to claim for a commode and wheelchair. The cost for a commode chair which also serves as a wheelchair is PHP 7,000. This has to be replaced every 2 years. The plaintiff is entitled to an award of PHP 66,500 (7,000÷2 x19) which amounts to $11,970 for this item.

69. Dr Kan was of the view that the plaintiff should have a hydraulic hoist to lift up the plaintiff and transfer him to bed to chair and vice versa. Virgie cannot be expected to continue to lift him up manually as this would undoubtedly cause her back pain. It is reasonable in my view for the plaintiff to claim the cost of a hoist which on the evidence is estimated to be $50,000 in Hong Kong. Virgie was unable to obtain a hoist in the Philippines. The hoist would need to be replaced every 5 years. The plaintiff is entitled to an award of $190,000 (50,000 ÷ 5 x19) for this item.

70. The plaintiff is also entitled to a walking frame which needs to be replaced every 2 years. The cost of the same is PHP 1,100. The plaintiff is entitled to an award of PHP 10,450 (1,100÷2 x19) which amounts to $1,881.

71. The award for future aids and equipment is therefore $371,089.

Pre-trial Special damages

72. These have been agreed in the sum of $65,682.

Summary of Damages

73. I summarise the damages that the plaintiff is entitled to as follows:

PSLA	$	1,500,000
Pre-trial loss of earnings	$	334,800
Loss of future earnings	$	1,562,400
Pre-trial care and attention	$	108,640
Future care and attention	$	1,212,960
Future medical expenses	$	427,538
Future aids and equipment	$	371,089
Special damages	$	65,682
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Total	$	5,583,109

Interest

74. The plaintiff is also entitled to interest to be calculated:

(a) on the award of PSLA at 2% p.a. from service of writ on 16 January 2012 until judgment; and

(b) on the award of pre-trial loss of earnings of the plaintiff and Virgie and the special damages at half judgment rate from 1 July 2010 to judgment.

Conclusion

75. I give judgment to the plaintiff against the defendant for damages in the sum of $5,583,109 with interest to be calculated as set out above.

76. I also make an order nisi for costs in favour of the plaintiff against the defendant, such costs to be taxed, if not agreed, in accordance with Legal Aid Regulations.