WONG WING SUN v. CHAN MAN KIN

HCPI902/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 902 OF 2002

_________________________

_________________________

__________________________

ASSESSMENT OF DAMAGES

__________________________

1. On 15 June 2000, the Plaintiff was driving his private motor car inside Tate's Cairn Tunnel when the Defendant so negligently drove his vehicle that it caused another vehicle to collide headlong with the Plaintiff's car. The Plaintiff was injured and taken into Prince of Wales Hospital. His car was severely damaged.

2. The Plaintiff started this action on 10 October 2002 for personal injuries, loss and damages arising out of the accident. Interlocutory judgment on liability was entered on 6th March, 2003, with costs and damages to be assessed.

3. Assessment took place on 8 March, 2004. 2 witnesses were called for the Plaintiff, and no witness for the Defendant. It was agreed that the trial bundle would go in as evidence. There were 4 agreed medical reports and reports from 1 medical expert from each side.

PAIN SUFFERING AND LOSS OF AMENITIES

4. The Plaintiff was born on 2nd August 1972, and was aged 27 at the date of accident, and aged 30 at the date of assessment.

5. He was immediately admitted into the Prince of Wales Hospital ("PWH") after the accident and was hospitalized for 6 days. He sustained multiple injuries, including head injury with amnesia, laceration at right elbow, right knee and nose, abrasion on both legs and right ankle medial malleolus facture. According to PWH, the Plaintiff was conscious upon arrival and during admission, without focal neurological signs. Diagnosis was that he suffered from a minor head injury. Suturing was done to his elbow and nose. He was transferred to orthopaedics ward for the management of the ankle facture. The Department of Orthopaedics & Traumatology of PWH reported that his ankle fracture was treated conservatively with casting for 6 weeks. On discharge, he was given follow up outpatient treatment. Radiologically, the fracture was shown to be healed and analgesics with physiotherapy were prescribed. He was last seen by the Orthopaedics & Traumatology Department on 19 January 2001 when there was some ankle pain and stiffness. He defaulted in follow up treatment on 6 April 2001. The Co-ordinator Clinical Services of PWH also reported that follow up appointments was arranged for the Plaintiff twice, but he did not attend.

6. According to the agreed report of Alice Ho Miu Ling Nethersole Hospital ("AHNH"), the Plaintiff attended 4 sessions of physiotherapy in August 2000 and has defaulted since 5 September 2000. He claimed that until October 2000, he needed crutches and a wheelchair, after which for 4 months, he walked with a bad limp.

7. The Plaintiff disagreed with the assessment findings on 29 August 2000 in the AHNH Report which stated that he could put full weight bearing walking unaided, and right single leg standing pain free. He explained that he was still in a 1-elbow crutch at the time, and standing right single leg was just not possible.

8. The Plaintiff was examined by his medical expert Dr. Jack W.K. Wong on 25 January 2002 and by the Defendant's medical expert Dr. Chun Siu Yeung on 17 April 2003. Both agreed that by the time of examination, the Plaintiff's condition was stable, the fracture had healed and apart from symptomatic treatment for pain, no further treatment was necessary. There was no deformity, and Dr. Chun assessed his prognosis to be good.

9. The 2 medical experts parted ways when it came to the assessment of the degree of impairment, differing in measurements in loss of range of movement. Whilst Dr. Chun reported that the Plaintiff could stand on one leg with stability, and could squat normally, Dr. Wong reported that the Plaintiff's activities were affected in not being able to squat completely because of diminished right ankle range of movement, jumping and running becoming difficult, and could not play soccer again. Driving, however, was not affected. The 2 experts also differed in opinion regarding the period of sick leave (which I will deal with below) and the effect of the injury on the Plaintiff's re-employment.

10. A report dated 15 September 2002, from Dr. Li Ming was agreed. Other than confirming that the Plaintiff consulted him on 5 July, 2000, 28 July, 2000, 29 August 2000, 15 October 2000 and 30 November 2000, and that when he first came, his leg was in a cast, the report did not add much to the picture.

11. The Plaintiff was prescribed sick leave by PWH from 15 June 2000 to 6 April 2001. He also consulted bonesetter for several times in or around September 2001.

12. Prior to the accident, the Plaintiff had enjoyed good health and had not suffered from any major illness. After the accident, the Plaintiff complains of occasional pain over his ankle, more so with standing or walking for about half an hour, stretching and in bad weather, when holding his one-year old daughter, stiffness with diminished range of movement causing difficulty in climbing and squatting. The pain is also said to reduce the duration for his being able to stand, and to walk. He claims that he cannot jump, run or play football because of the pain, cannot squat completely, and needs a cushion to raise his right leg during sleeping. He claims to suffer from recurrent headaches of severe intensity since the accident, and he needs to take painkillers.

13. The Defendant's case is that the Plaintiff has exaggerated his complaints, and showed surveillance photographs of his entering, with agility, his new car and the bus he presently drives. I have observed the Plaintiff in Court. His gait and appearance does not suggest, as he claimed in his witness statement of 20 March 2003 that he was limping or in pain. His suturing scars are not greatly visible. I would accept that he underwent a serious accident, and was most fortunate to have come through so well. No doubt, he underwent pain and inconvenience at the time, and there will be some degree of residual impairment. The Plaintiff is an alert and energetic young man, accustomed to being on the go. He worked as a driver, and drove his private car in his free hours despite long working hours. In the evening, he went out to work with a gang of manual workers for the MTR. He enjoyed playing football, which he can no longer do. He spoke of just laying in bed for the 9 and a half months during his sick leave doing nothing, except about one and a half hours of physiotherapy each day on his own. His injuries and residual disabilities must affect him more than someone accustomed to a less active way of life.

14. Counsel on both sides agree that the present case falls outside the "serious category". The Plaintiff urges an award of $350,000 to $400,000, citing amongst others, Siu Wan Man Ada v. Lee Chi-Chong (PI No. 174 of 1994), Ng Wah Chun v. Cheng Wing Chun (HCPI 164 of 2001), Cheung Hei Kwong v. Kwong Key Construction (HCPI 1260 of 1999), all of which seem to me to deal with more severe cases. The Defendant contends on the other hand, the correct figure should be between $150,000 and $200,000 citing Chan Ming v. Wayfine Investment Ltd. (HCPI 148 of 1997) and Wong Ka Pang James v. Wong Chun Wang (HCPI 644A of 1998) where $200,000 was awarded. The award of $150,000 in Lau Kin Wai Danny (HCPI 1007 of 2000) was referred to by Counsel for the respective parties. I note that the Plaintiff's injuries were more severe than in that case, where the claimant went by taxi to the hospital after the accident, and was not even hospitalized.

15. However, I note that the Plaintiff defaulted in attending follow-up sessions with PWH, and physiotherapy with AHNH. I do not consider this to impact on the duration of his sick leave, which was granted prior to his default, but take this into account in assessing the figure for PSLA, as, on balance, one would reasonably expect his suffering to diminish with physiotherapy from experts, instead of relying on his own efforts at home. Considering all the above factors and the authorities, I make an award of $220,000.

PRE-TRIAL LOSS OF EARNINGS

16. Prior to the accident, the Plaintiff was a full-time driver and transportation worker with Chun Sing Transportation ("Chun Sing") earning $12,000 per month. His job was to drive a light goods vehicle. Apart from driving, he had to do the loading, sometimes without the assistance of a vehicle attendant. The goods weighed up to about 30 kg. Chun Sing dismissed him with effect from the date of the accident and employed a replacement.

17. 2 and a half months prior to the accident, in March 2000, the Plaintiff started working part-time as manual worker for MTR maintenance through Hop Yick Construction Chemicals Co.("Hop Yick"). In performing his duties, he spent most of his time operating a 5-kg concrete drill breaking blocks of concrete under the MTR rails, requiring squatting occasionally. Since his accident, he has not been able to resume his former part-time job.

Full time job

15 June 2000 to 6 April 2001 (9.7 months)

18. PWH granted the Plaintiff sick leave from 15 June 2000 to 6 April 2001 (almost 9.5 months). The Defendant challenged this as being unreasonably long. In support, the Defendant quoted Dr. Wong who was the Plaintiff's own medical expert. In his first report, Dr. Wong stated that 2 and a half months sick leave was reasonable. In a subsequent letter of 12 August 2002, he clarified that that opinion was quoted from information then available, and he had not been told of further sick leave. He then went on to say that reasonable sick leave should be about 4 to 6 months. The Defendant's expert, Dr. Chun, opined that reasonable sick leave should be 3-4 months, and that the Plaintiff, with his minor degree of impairment, should be able to resume work as driver and delivery worker with some restriction of heavy lifting and be able to work with a 5-kg drill. The Defendant therefore says that I should only take into account at the most, 6 months as sick leave.

19. The Plaintiff explained that the 9.7 months sick leave was the accumulated total of the sick leave he was granted by PWH, each time when he turned up for consultation, and prior to his default in follow up treatment. Mr. Kwok, representing the Plaintiff, urged upon me that the opinion of the PWH which actually treated the Plaintiff and had the benefit of observing him at the material time, should not be lightly displaced by experts who only saw him a year or 2 later. I accept his submission in this regard. I am further comforted in noting that in Lau Kin Wai, Danny involving an analogous but less serious injury, the Court accepted 9 months of sick leave to be reasonable. Although every patient must be considered individually, this indicates that there is nothing manifestly unreasonable in PWH certifying 9.7 months of sick leave for the Plaintiff.

7 April 2001 to 31 July 2001 (3 .8 months)

20. Until 1 August 2001, the Plaintiff was out of a job. He explained that this was due to his unsuccessful attempts at finding employment. He gave evidence that he returned to his old job with Chun Sing in June or July 2001, only to find that he was trembling after a day's work involving his former duties of driving and moving goods, and could not cope with his former job anymore. In July and August 2001, he trained for, and in September, 2001, obtained a licence in driving Medium Goods Vehicle. He found new employment on 1 August 2001. The Plaintiff claims a reasonable period for seeking new employment. The Defendant led no contradictory evidence but contends that the Plaintiff should have started the process of seeking employment earlier. I accept the Plaintiff's evidence that he was unable to find a job despite his efforts.

21. Both parties referred me to the case of Chow Tai Loi v. Leung Kam Hung (HCPI 320 of 2022) where Master Jefferies re-iterated the principle that the Court will allow a reasonable period of time after expiry of sick leave for the Plaintiff to find a suitable new job. Mr. Kwok submitted for the Plaintiff that what amounts to a reasonable period must be looked at from the realities of the labour market and someone in the Plaintiff's condition and background. The Plaintiff was educated up to Form 4 level, and could not qualify even for a paging attendant. I agree with him. In the absence of evidence that the Plaintiff was deliberately not seeking employment, I take his period of loss to extend to end July 2001.

1 August 2001 till 8 March 2004 (31.3 months )

22. The Plaintiff found employment on 1 August 2001 with Wai Wong (Hong Kong) Transport Co. ("Wai Wong") at a salary of $8,000 per month. His duties were limited to just driving. Moving goods was carried out by car attendants and not by him. He said he "noticed" , without more, other workers who drove and moved goods were getting $14,000.

23. Since 1 November 2002, with his newly acquired bus licence, he has been working for Hing Yum Ltd. ("Hing Yum") as a coach driver earning $8,000 per month. His working hours are 6:20 am to 9 am, and then 3 pm to about 8:30 pm. He hopes to be able to find a part-time job in between those working hours.

24. The Plaintiff was earning $12,000 on his full time job prior to his accident. He claims that had the accident not occurred, he should have been earning $14,000 by June 2002. This was disputed by the Defendant who relied on the Government Quarterly Report of Wage and Payroll Statistics to be $11,820 in 2002, and $11,166 in 2003 to demonstrate that the Plaintiff's salary of $12,000 was already above market rate, with little room for increase to $14,000. A certificate from the Plaintiff's former employer Chun Sing dated February 2003 stated that the current salary of the Plaintiff's replacement worker was $13,000. This was an agreed document. I accept that to be the more appropriate figure. For his pre-trial loss, I take the median figure of ($12,000 for 2000 + 13,000 for 2003) /2 = $12,500.

25. The Plaintiff suffered a total loss on his full time job from 15 June 2000 to 31 July 2001 being 13.5 months. His total loss for 13.5 months is assessed to be 13.5 x $12,500 = $168,750.

26. The Plaintiff suffered partial loss on his full time job from 1 August 2001 till 8 March 2004 (31.3 months). His partial loss is assessed at ($12,500 - $8,000) x 31.3 months = $140,850.

Part time job

27. The Plaintiff further claims loss on his part time job as a manual worker with Hop Yick. He described it as being on a "long casual" basis with a daily wage of $380 per night shift, and $410 per day shift. Hop Yick arranged for him, with other workers, to go and work on maintenance projects it had with the MTR. The Plaintiff worked for 2 and half months before the accident. His earnings were $7,600 in April, $10,320 in May and $4,180 for the first half of June. Assuming the same rate for the other half of the month, he would have earned $8,360 in June. The Defendant submits that $7,600 should be taken as his pre-accident earnings. The Plaintiff submits that $8,960 (being the mean between $7,600 + 10,320) should be taken. I do not see why all the wages should not be taken into account. I take ($7,600 + 10,320+ $8,360) divided by 3 = $8,760 as his pre-trial part time job wages.

28. The Defendant produced a Business Registration search which showed that Hop Yick ceased business on 28 March 2003. The Defendant contends that even had the accident not happened, the Plaintiff would have lost his part time job with Hop Yick anyway after March 2003. This was not accepted by the Plaintiff. He called as his witness, Lai, who was a friend and ex colleague also engaged through Hop Yick on a long-term casual basis for MTR maintenance jobs. Lai said that some time in March 2003, the workers were told that Hop Yick had changed its name to Hop Yuen. Hop Yuen carried on the same business as Hop Yick did previously, and engaged them at a reduced rate of $350 per night shift. Lai stopped working for Hop Yuen on 9 June, 2003, when he changed to a full time job with Barclay Mowlem ("Barclay"), working an 8-hour night shift for 6 days a week at a fixed monthly salary of $12,800.

29. The Plaintiff's case is that had it not been for the accident, he would also have been in the same position as Lai, and his part time job would have continued on the same basis, resulting in a loss of $8,960 per month. I consider it speculative to equate the Plaintiff and Lai insofar as job opportunities are concerned. The Plaintiff was a manual labourer, spending most of his time working a drill. He had only worked 2 and a half months at the Quarry Bay MTR Station project before the accident. The nature of his employment with Hop Yick was casual and his number of days of work unsteady. Lai on the other hand, had various Construction Industry Safety Training Certificates. His employee card issued by Hop Yuen recognised him for 7 trades including metal worker, painter, artisan, concrete repair worker. His post with Barclay was "Technician Assistant-Track". Both the Plaintiff and Lai conceded in cross-examination that the people within the same team of workers in Hop Yick did change from time to time, and that there was no obligation on the part of Hop Yick to continue to engage any of them after that evening's work. There was no evidence as to whether the whole team was re-engaged by Hop Yuen after Hop Yick ceased business. In any event, Lai left Hop Yuen shortly for Barclays, and concedes that he is unable to speak for what has happened to the Hop Yuen terms and situation. I do not find on the basis of the present evidence, that the Plaintiff would have continued in his pre-accident part time job beyond the cessation of business of Hop Yick. I therefore assess his loss on the part-time job from 15 June 2000 to 28 March 2003 (33.5 months) x $8,760 = $293,460.

30. However, the Plaintiff is obviously a young man determined to better himself, as seen from his securing licences for driving medium goods vehicle and bus. I would consider it more than likely that after Hop Yick's cessation, he would have found some form of part time job or another, though not to the level of his pre-accident earnings. I apply the notional figure of $4,380 ($8,760 divided by 2). A reasonable time for finding a new job would have been 3.8 months after Hop Yick ceased business. I accordingly award him 8 months of loss (from July 2003 to March 2004) at $4,380 = $35,040.

31. His aggregate pre-trial loss of earnings is $168,750 + $140,850 + $293,460 + 35,040 = $638,100.

LOSS OF FUTURE EARNINGS

Full time job

32. The Plaintiff is earning $8,000 now. I accept that he would have been earning $13,000 were it not for the accident. The Plaintiff claims the difference of $5,000. He was aged 27 at the date of accident and now aged 30. The Plaintiff says 16 is the appropriate multiplier for such loss.

33. The Defendant however, points to the commendable efforts by the Plaintiff to better himself in securing in September, 2001 a licence for driving Medium Goods Vehicle, and for bus in February 2002. He plans later this year to re-test for a container tractor licence. The Plaintiff agrees that a container tractor driver would be able to earn on average about $10,000 and it would qualify him to work in the Mainland, where job opportunities are greater and pay higher. Nevertheless, he would not personally go there to work due to perceived corruption. The Defendant submits that with the Plaintiff's active efforts in improving himself, the disparity between what he could have earned and what he would be earning in future years should not be more than $1,000 or $2,000 per month, again citing the Government Quarterly Report of Wage and Payroll Statistics as what he would be likely to achieve after a few years.

34. As observed before, the Plaintiff appears to me to be a resourceful, and energetic young man. He is educated up to Form 4 level, and he makes up for what he lacks in formal education by hard work. After the accident, he married his girlfriend, who then gave birth to a baby daughter. His evidence was that marriage and fatherhood gave him greater incentive to work harder to better the family circumstances. I am quite satisfied that he would wish to work for as long as he is able. I consider a multiplier of 16 to be appropriate in his case.

35. As for the multiplicand, I agree with Mr. Kwok that it would be unreasonable to expect the Plaintiff, in the light of his personal views on its transportation industry practices and having a young child, to go and work in China even if there were better job prospects. He has worked as an electrician, but is not formally qualified. He has tried to seek sedentary work, but is handicapped by his lack of education. His best prospects are to remain working as a driver. Due to a past conviction on careless driving, he will not qualify for employment with KMB, which pays its drivers $11,000. However, one would reasonably expect that the present $5,000 gap between his actual earnings and what he could have earned will narrow considerably when he obtains his container tractor licence later this year, if not in the near future. This gap will further taper off with time and age when he hits the natural ceiling for wages at his old job of driver cum mover. Looking at all the factors, I take a multiplicand of $2,000 as his average loss over such a long working life. I assess loss of future earnings on his full time job at $2,000 x 12 x 16 = $384,000.

Part time job

36. Prior to the accident, he worked from 1 am to 5 am at his part time job, driving about 40 minutes from home to work in Quarry Bay and back. As a result, he had about 5 hours of sleep a night. The Plaintiff had no complaint against this life style, though he admits he had little social life except on Sundays, and on occasional Saturdays.

37. He has been trying unsuccessfully since the accident to secure a part time job, but nothing suitable has turned up. Because he works as a driver in the day time, he does not have enough concentration to also work as a driver part time. The Plaintiff claims the appropriate award should be $8,760 per month with a multiplier of 12. His claim assumes a total loss.

38. The Defendant submits that a multiplier of only 3 - 4 should be taken, as it would be unlikely for the Plaintiff to have continued beyond the age of 40 with sleeping only 5 hours, with little social life, particularly since he had a young child and wife.

39. The Plaintiff submits that we should look at the reality of the matter. The Plaintiff comes from the grass root level. It is not unusual in Hong Kong for people to take on part time jobs to make more money. I accept the Plaintiff's evidence on his unsuccessful attempts at looking for a part time job, and that he would take up any suitable offers, and he would try to work part time for as long as possible. Bearing in mind the sustainability of such a gruelling schedule, I adopt a multiplier of 11, on the basis that as the years go by, he would have tended to work for shorter hours anyway. I do not consider it likely for someone as resourceful as the Plaintiff to suffer a total loss over such a long stretch of time. Considering all the factors, I assess his loss on the part time job to be $4,380 ($8,760 divided by 2) x 11 x 12 = $578,160.

40. Sub-Total on the Plaintiff's loss of future earnings is $384,000 + $578,160 = $962,160.

LOSS ON MANDATORY PROVIDENT FUND ("MPF")

Pre-trial

41. There is no evidence that the Plaintiff received any contributions from his employers prior to December 2000 when the MOF scheme came into force.

42. The loss of employer's contribution to his MPF on his full time job from 1 December 2000 to trial is 5 % x $240,850 = $12,042.50. Loss relating to his part time job is 5% x (245,280 + 35,040) = $14,016.

Post trial

43. His loss is 5% x ($384,000 + 578,160) = $48,108.

LOSS OF EARNING CAPACITY

44. Considering the educational background of the Plaintiff and his skills, I am of the view that the Plaintiff will suffer a handicap in the job market, should he ever be thrown into the position of having to re-locate a job. I award him $ 50,000 roughly equal to 4 months of his salary.

SPECIAL DAMAGES

45. The following items were agreed at pleadings stage:-

Medical Expenses	1,924
Medical and rehabilitation appliance	240
Bonesetters' Fees	600
Loss of mobile telephone	2,500

46. The following items were further agreed prior to trial:-

Chinese Medicine	3,000
Loss of vehicle	11,000
Survey Report Fee	800
Towing Fee	800
Travelling Expenses	7,000

47. I accordingly make the award for Special Damages in the sum of $27,864.

SUMMARY

PSLA	$220,000.00
Pre-trial loss	$638,100.00
Future Loss	$962,160.00
Pre-trial Loss of MPF	$26,058.50
Future loss of MPF	$48,108.00
Loss of Earning Capacity	$50,000.00
Special Damages	$27,864.00
Total	$1,972,290.50

JUDGMENT

48. There will be judgment for the Plaintiff for $1,972,290.50 with interest and cost. Interest on general damages shall be at the rate of 2% per annum from date of service of the writ until judgment, and at the rate of 4% from the date of accident to date of judgment in respect of past loss and special damages. I give an order nisi for costs to the Plaintiff to be made absolute in 14 days unless parties apply otherwise within the said time.

49. The sum of $100,000 which the Defendant was ordered to pay as Interim Payment on 6 March 2003 is to be set off against the above amount of damages.