CHOW YUET SHEUNG v. LAW YIU KWONG

1984 No. 7773

IN THE SUPREME COUNT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. On the 9th May 1982 at about 1.10 p.m. the plaintiff and others were passengers in a private van BS2278 which was being driven along Tuen Mun Road. The defendant was at the same time driving his private car CL7219 in the opposite direction. The defendant's vehicle crossed into the path of the van carrying the plaintiff and a collision occurred as a result of which the plaintiff was injured.

2. Default judgment was entered against the defendant on 6th May 1983.

3. The defendant was not present at this assessment.

Special damages :

4. The plaintiff claims special damages as follows :-

5. Sufficient to say that these items were fully documented in the hearsay notice and I am satisfied that they were all necessarily incurred and I make an award accordingly.

General Damages :

(a)    Pain suffering and loss of amenities

6. The plaintiff, as a result of the accident has lost an eye which has been replaced by an artificial one. There was acute scarring about the eye but these scars have been revised and are now, according to my own observations, barely discernable.

7. The loss of an eye in my view is at the top of the scale of serious injury as described by Cons J.A. in Lee Ting Lam v. Leung Kam Ming [1980] HKLR p.657.

8. Bearing in mind that that case was decided in 1980 and it is now accepted that there have to be adjustments for the fall in the value of money it would appear that an award approximating that in Au Leung v. Yip Yim Choi 2432 of 1984 ought to be made. Accordingly I assess damages under this head to be $120,000.00

(b) Loss of future earning capacity

9. This head of damages was described in Moeliker v. A. Reyrolle & Co. Ltd. [1977] 1 AII ER 9at p.15b in the following terms -

"This head of damage generally arises where a plaintiff is, at the time of the trial, in employment, but there is a risk that he may lose this employment at some time in the future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial."

10. In Hong Kong the Court of Appeal have held that in similar circumstances to these it was axiomatic that there would be some loss in respect of earning capacity, see Leung Shing and another v. Cheung Ping Wai Cir. App. 93 of 1982.

11. Several cases were cited to me in which awards had been made under this head and I think it proper that I should follow them. Accordingly, for damages under this head I award $45,000.00

Summary

12. There will be an order for costs to the plaintiff to be taxed and there will be a certificate for counsel.

Interest

13. There will be interest on the general damages at 2% p.a. from the date of the writ until judgment.

14. The interest on special damages will be at the rate of 4% p.a. from the date of the accident to the date of judgment.