CHIU SHING WAI v. FUNG PING TONG AND ANOTHER

bjbj HCA006593/1981 No. 6593 of 1981 IN THE SUPREME COURT OF HONG KONG HIGH COURT ____________________ BETWEEN CHIU SHING WAI Plaintiff and FUNG PING TONG 1st Defendant CHUNG FAT YUNG 2nd Defendant _____________________ Coram: Mr. Registrar Barrington-Jones in Chambers. Mr. Michael Ozorio (Instructed by the Director of Legal Aid) for the Plaintiff. Mr. Alexander Wong (Instructed by Vincent Lo & Co.) for the Defendants. __________ DECISION __________ This is an assessment of damages consequent upon injuries suffered by the plaintiff when he was involved in a traffic accident on the 10th of September 1979. On the 13th of November, 1981 interlocutory judgment was entered for the plaintiff against the defendants, with damages to be assessed. GENERAL DAMAGES (i) Pain, Suffering and Loss of Amenities The plaintiff was admitted to Princess Margaret Hospital on the 10th of September 1979, and upon examination there was found to have :- 1. Multiple laceration on the right upper limb and forehead; 2. haematoma on right knee; 3. tenderness and deformity of the left leg. X-rays showed a fracture of the right patella and a fracture of the left tibia and fibula. Open reduction and internal fixation was done on the 11th of September 1979. The post-operative period was complicated by pneumonia and high fever; and on the 19th of September, 1979 the plaintiff was discovered to have quadriplegia. Later the plaintiff was transferred to Pok Oi Hospital in Yuen Long and there he was seen on two occasions in 1981 by Dr. Wedderburn. Dr. Wedderburn's first visit was on the 9th of January 1981 and he writes - "He was in Princess Margaret Hospital for six months and was then transferred to the Rehabilitation Centre at Kwun Tong where he remained for six months having intensive physiotherapy and rehabilitation. At first he could not move his limbs at all but gradually improvement took place and he achieved a considerable degree of movement in both the arms and legs. He was taught to walk with a tripod frame and he can get out of bed himself, stand up, hold the frame with both hands, move the frame forwards and even take a step with each leg, moving 1' forwards with each combined manipulation. In the ward at Pok Oi he can walk the length of the ward (about 60') and he does this several times in the morning and afternoon .......... He can only raise his right arm slowly to shoulder level and he has only a trace of movement in the fingers and hand and the movement is useless for any delicate manoeuvre although he can use the arm to push the wheels of the wheel chair. He can raise the left arm to slightly above shoulder level, he can hold a bowl in the left hand or hold a spoon ...." Dr. Wedderburn went back to visit the plaintiff on the 8th December 1981 and at that time he notes :- ......."On examination there is no difference except for a possible mild deterioration in his control of urine and bowels. He says that he would like to leave hospital and obtain a room near his daughter and by his own estimate would require somebody to come in, clean the room, cook his food, do the marketing etc. and he thinks that help for three hours a day would be sufficient. I think that if he got a room he would be better to share it with another man, that he would probably require help for more than three hours, preferably for three hours in the morning and again for an hour in the evening and that he should not live in an isolated hut or flat but in a room where help would be readily available if he can into difficulties... The Pok Oi Hospital mainly looks after chronic cases; in neighbouring beds I found several of the patients obviously mentally dull and there is little provision made for entertainment of the patient, there are no facilities, for instance, to watch television." In his first report Dr. Wedderburn said that the expectation of life for a man of 60 in Hong Kong is 15 years, and remarks that because of the risks of infection and disease, in which there is delay in recognition, his life is likely to be shortened by at least 30%, and he is unlikely to live after the age of 70; and in his second report Dr. Wedderburn did not seek to vary that view. At the hearing Dr. Wedderburn amplified his reports and confirmed that whilst the plaintiff had partial quadriplegia he could leave hospital, but he stressed that the plaintiff would need assistance, requiring someone 24 hours a day; and that it would be dangerous for him to be left on his own. Insofar as nursing care was concerned Dr. Wedderburn thought that the plaintiff would require the services of a nurse two or three times a week for 2 or 3 hours. Whilst conceding that Pok Oi Hospital was clean and airy and where the medical attention was good, Dr. Wedderburn considered it to be a depressing place. He also noted that the plaintiff is now able to use his wheelchair quite skilfully. On the subject of special foods (chicken and ginseng) Dr. Wedderburn considered that persons of the plaintiff's class believed that these sort of foods were necessary, and said it would be thought negligent if they were not taken; but he agreed that they were, in fact, of no real benefit, although he thought that there was some psychological benefit. Dr. Wedderburn said that he did not think that there was any chance of further improvement in the plaintiff's state, remarking "If he stays in an institution I would say that his expectation of life would be 30% but if he goes home I would say his expectation of life would be worse. I believe that the quality of life at home would be better, so that it is better to have a shorter life in more pleasant surroundings." Mr. Ozorio pressed very strongly that the plaintiff's injuries came within the 'Disaster' category as envisaged by the Court of Appeal LEE Ting-lam and LEUNG Kam-ming (1980 H.K.L.J. (10) 364) whilst Mr. Wong urged that the injuries be categorised as 'Gross Disability' as reflected in the same judgment. After the most careful consideration I find that the 'Gross Disability' category is the appropriate one in this case; for whilst tetraplegics are certainly included in the 'Disaster' category, it has to be remembered that the plaintiff here is what Dr. Wedderburn has described as a "partial quadriplegic", with limited use of his arms and legs. The introductory phrase used by the Court of Appeal in describing the 'Gross Disability' category is most apt here viz :- This comprises injuries which leave the victim with very restricted mobility .......... Awards in this category range from $100,000 to $150,000. Using $100,000 as a base and noting the Court of Appeal decision was made on the 30th May, 1980, and having considered WONG Tak-hing v Lai Seng Industrial Co., Ltd., Action No.1489 of 1973 and other cases cited to me; and having proper regard to the passage of time since many of these awards, the age of the plaintiff, and an element for inflation (Walker v. John McLean & Sons Ltd. - 1979 2 All E.R. 965) I have come to the conclusion that the appropriate award should be $145,000. There remains damages for loss of expectation of life which I assess at $10,000. (ii) Future Loss of Earnings" Mr. Au Ying told the hearing that he had employed the plaintiff as a general labourer between 1976 and 1979 when he earned about $1,200 per month. He said that if the plaintiff had continued in his employ he would now be earning between $1,500 and $1,600 (including bonus) plus meals, with permission to sleep on the premises; and that he could have continued working until he was 70. Whilst Mr. Wong Man Woon said that before his accident the plaintiff had been working with him for about 5 to 7 days making cork bottle tops. He said that the plaintiff earned between $50 and $80 per day at that time. He explained that $50 to $80 was the actual sum earned exclusive of costs for purchase of (illegible) cork and meals etc. I must admit that I have found it somewhat difficult to arrive at a fair and equitable estimation here, and this has not been made any easier by the difficulties encountered over the plaintiff's age. But upon careful reflection I must, I think, accept the evidence of the plaintiff and his daughter that he is now 55 or 56 years of age; although I agree with Mr. Wong that he looks very much older. I will, however, treat him as being 56. I have, of course, first to decide the age to which, but for the accident, it is likely that the plaintiff would have continued to work and I accept on the evidence that this would be 70. At his present age of 56, he would but for the accident, have had a maximum of 14 years more working life before him. After referring to Tam Hang & Wong Fit-chung 1980 H.K.L.R. 234, I find myself in agreement with Mr. Ozorio's submission that the multiplier here should be 9. In regard to the multiplicand Mr. Ozorio thought it should be $2,000 whilst Mr. Wong suggested $1,200. There are many imponderables here not the least being the demand for cork tops, seasonal fluctuations etc. but in an attempt to be entirely fair to the plaintiff I will adopt $1,500 as the multiplicand. So that (1,500 x 9 x 12) = $162,000 iii) Cost of future nursing care and attendance In attempting to deal with this particular aspect of the assessment I found it necessary to re-open the hearing if only for the purpose of taking evidence regarding the estimated costs and charges for a prolonged stay at Pok Oi Hospital, as well as to obtain advice regarding the Social Welfare Department's policy in the care of quanriplegics in Hong Kong. The resumed hearing took place on the 23rd March, 1982 when Dr. Wong Wai Kwong the recently appointed Medical Superintendent of the Pok Oi Hospital gave evidence. Dr. Wong told the hearing that the plaintiff had in fact been subsequently transferred from Pok Oi to Princess Margaret Hospital on the 16th March, 1982. He said that the current daily charges at his hospital were $5 per diem (with no additional charges or fees). Dr. Wong did not agree with Dr. Wedderburn's description of the plaintiff's want at Pok Oi, and felt that the plaintiff would be better off in hospital and that thus his life expectancy would be better. Dr. Tse Chor Fat who has current personal medical charge of the plaintiff at Princess Margaret Hospital gave his opinion that the plaintiff now needs medical supervision once a quarter, and said that he too had found the plaintiff's ward at Pok Oi to be depressing. He further advised that whilst the plaintiff had expressed no preference for Princess Margaret Hospital over Pok Oi he had made is very clear that he just did not want to be institutionalised. He went on to say that whilst the plaintiff is strong-willed in the sense that he wants to be independent he still needs someone's care for his physical disabilities; and that nursing care was required in order not to reduce the plaintiff's life expectancy. Finally, Dr. Tse said that if the plaintiff was discharged from hospital into good nursing care it might improve his life expectancy because he would get more pleasure out of life. Mr. Leung Kwok Fat, a medical social worker, said that he was familiar with the plaintiff's case and had been visiting him for the past eighteen months, and that the plaintiff had repeatedly told him that he would be happier living away from the hospital with companion. Mr. Leung told the hearing about Care and Attention Homes and in particular the Kam Tin Home which is a home for males where the cost is $525 per month which included all meals, services and accommodation. He said that there were a number of quadriplegics staying in these homes, and advised that such homes had a resident nurse and social worker and that a doctor visited on request. Mr. Leung was of the view that faced with the choice of staying on in hospital or going to a Care and Attention Home he thought the plaintiff would prefer the latter. Whilst Mr. Ozorio has strongly urged me to make provision for the plaintiff to rent (or purchase) self-contained accommodation for himself, as well as for financial provision for a companion/help for him, I have come to the conclusion that this would not, in the last analysis, be in the best interests of the plaintiff. I say this for the following reasons :- (1) Dr. Wedderburn described the plaintiff as not very intelligent and expressed the view that better care would be obtained if the plaintiff remained a hospital patient; (2) It is common ground that the plaintiff comes from simple farming stock and has never had a home of his own, and (as Mr. Ozorio concedes) the plaintiff and his family are unsophisticated folk; and (3) That I have grave doubts as to whether the plaintiff (even with the assistance of his daughter) has the competence and ability to run a home and supervise the work of a companion/help. So that I just do not feel that this proposal would work out in practice. (Reports of Chambers v. Karia and Taylor v. Glass - "Damages for Personal Injury & Death" Kemp - considered) Whilst I accept that the plaintiff is unhappy in hospital and yearns to be away from the rigorous confines of hospital life, I am completely persuaded that if a place can be found for the plaintiff in a Care & Attention Home this will suit his purposes admirably. I say this because, as I understand it, he will have the services both of a resident nurse and social worker and medical attendance would be available as and when necessary. I now understand that the plaintiff has already been placed on the waiting list for admission to one of these homes and that it is likely that he will gain admission within a year. It is in these circumstances that I make an award under this head to provide for the plaintiff's admission and residence in such a ho e with immediate effect. The monthly inclusive charge is $525 so that :- (525 x 15 x 12) = $94,500.00 SPBCIAL DAMAGES Loss of Earnings Having fixed the plaintiff's average earnings at $1,500 per month, the sum of $1,500 is awarded for the agreed 28 month period. (28 x 1,500) = $42,000 Nourishing foods The revised amount claimed under this head was $3,390 but this figure is largely unsubstantiated. I therefore follow Yu Ki and Chan Kit Kam & Chan Kwai Ming (1980 No. 2224 (Civil) where the Chief Justice said (at p.8) :- However, it seems to me to be proper, even in the absence of the necessary evidence required as to the advisability or suitability of the food, to allow a nominal sum, where relatives have spent this on food which the injured person or the relasive reasonable believes to be helpful to the plaintiff's recovery." In endeavouring to arrive at an appropriate nominal figure and noting that ginsang was only supplied 2 or 3 times, I will allow this item in the sum of $750. Hospital Charges Hospital-charges were agreed and are allowed at $3,325. Travelling allowances Travelling allowances were agreed and are allowed at $900. Damaged clothing etc: The claim for damaged clothing, spectacles and watch were agreed and are allowed at $600. Medical Equipment The provision of a walking frame and wheelchair were agreed and are allowed at $450. ________ $48,025 ________ Interest on the general damages will run at 14% from the date of the issue of the writ, which was the 24th September, 1981, until today. (H.C.A.4321 OF 1981 - HO Hing-mui and others per FUAD. J., followed) Interest will run at 7% on the special damages from the date of the accident, i.e. from the 10th September, 1979 until today. The plaintiff is entitled to his costs, with a Certificate for Counsel. Such costs to be taxed in accordance with the Legal Aid Regulations. Dated this 17th day of May, 1982. Sd. (J. Barrington-Jones) Assistant Registrar. 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