Damages for paraplegic injury

Ng Tat Keun v Tam Che Fu and ECAFB HCPI 896/2013 [2019]

This Judgment was an assessment of damages involving an employee with paraplegic injuries.  At the material time, his employer failed to take out EC insurance and the Employees’ Compensation Assistance Fund Board (ECAFB) joined in the proceedings to contest quantum but did not dispute liability.

Total damages was awarded at over $12.7m inclusive of $2.2m employees’ compensation. About $2.25m was for PSLA, $4.5m for loss of earnings, $1.7m for cost of alternative accommodation, $2m for cost of care and $1.5m for medical treatment.

Parties had actually agreed a settlement prior to the hearing but requested the Court to “approve” the sum.  Most of the heads of damages were not contested but Mr Justice Bharwaney took the opportunity to set out some guidelines on how certain heads of damage should be calculated.

Cost of private or public care

The Court reiterated that if a plaintiff evinces genuine intention to seek treatment from private doctors or from a private clinic or hospital, the court should award damages based on the cost of such treatment, unless there was good reason why he or she should obtain the reasonably needed treatment from the Hospital Authority (HA).  Provided the treatment is reasonably needed, the plaintiff’s choice to seek such treatment in the private sector cannot be equated with a failure on his part to mitigate his loss by seeking the needed treatment from the HA.

That means the starting point is cost of private care will be awarded even if the claimant had been receiving public care up to the time of trial.

Cost of domestic helpers

The court allowed the cost of engaging two domestic helpers instead of the higher cost of hiring a health care assistant plus one domestic helper, as recommended by the Plaintiff’s expert occupational therapist.  Since there would be two helpers assisting the Plaintiff, the value of the sisters’ services would be assistive and supervisory only and therefore, allowed at $2,000 per month only.

Future cost of alternative accommodation

Historically, courts have assessed this head of claim by reference to purchase cost of suitable accommodation or by cost of rental over the person’s lifetime.  Since the English case of Roberts v Johnstone [1989] CA to which some Hong Kong courts have followed, the full purchase cost has not been allowed to prevent a windfall to the estate of the plaintiff after death.  The approach adopted was to allow additional annual costs over the plaintiff’s lifetime based on the real rate of return on investment.  For example, assuming purchase price of $7m and net rate of return is 2.5%, the annual costs would be $175,000. Applying the whole life multiplier adopted in the present case of 8.61, the annual costs would be $1.5m, which is only about 22% of the assumed purchase price of $7m.  The Court said that it would clearly not be appropriate to adopt the Roberts v Johnstone formula in this case where future life expectancy is short.  

Instead, the Court adopted the rental differential approach based on the current rental of suitable accommodation less current rental actually paid and the lifetime multiplier (ie $15,000 future rental less $1,105 current rental x 12 x 8.61 multiplier = $1,435,631).

ECAO

The Court was also highly critical of the Secretary for Welfare and Labour and the Commissioner of Labour for failing to amend the Employees’ Compensation Assistance Ordinance (ECAO) to ensure that severely injured employees received their full judgment awards.  Under the present ECAO regime, after a first payment of $1.5m has been made out of the judgement sum, the balance must be paid by monthly instalments equivalent to the monthly earnings of the injured employee.  He or she would be entitled to extra payments if severely injured but capped at $10,000 a month, until the judgment sum is exhausted. 

In the present case, given net damages exceeded $10m and the monthly instalments would be around $38,000, it would take over 19 years of monthly instalments before the Plaintiff is fully paid but he only has a life expectancy of 7.5 years from date of judgment. That clearly could not have been the intention of the ECAF scheme.  Mr Justice Bharwaney contrasted the ECA regime with the scheme administered by the Motor Insurers’ Bureau (MIB) for uninsured drivers.  Under the MIB regime, a claimant would be paid in full within 28 days but under the present ECA scheme, severely injured employees are likely to be seriously under compensated unless the ECAO is amended soon.

Click here for the Hong Kong Personal Injury Brief July 2019 Edition.