LEUNG CHAU v. THE INCORPORATED OWNERS OF KWAI WAN INDUSTRIAL BUILDING AND OTHERS

HCPI 1074/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1074 OF 1998

______________________

______________________

___________________________

ASSESSMENT OF DAMAGES

___________________________

Application

1. This is an application for assessment of damages for personal injuries sustained by the Plaintiff against the 1st and 2nd Defendants.

Background

2. The Plaintiff was a labourer employed by the 3rd Defendant.  On 9 April 1990, at about 3:30 p.m., the Plaintiff went to a dyeing factory at Kwai Wan Industrial Building, No. 2 Wing Kin Street, Kwai Chung to take delivery of cloth.  He took lift no. 2 (“the Lift”) of the building.  The Lift stopped on the 15th Floor and the inner gate opened but not the outer one.

3. When the Plaintiff stepped forward towards the gates to find out what had happened, the inner gate moved and hit him.  The Lift also suddenly sank and the Plaintiff’s jaw was injured.  As a result, the Plaintiff suffered loss and damages.

4. The proceedings herein were commenced on 23 February 1993.  The 1st Defendant is and was the owner of the Lift while the 2nd Defendant was at the material times the contractor for providing repair and maintenance service to the Lift.

5. The action against the 3rd Defendant was discontinued on 15 December 1993.  Default judgment was entered against the 1st Defendant with damages to be assessed on 7 April 1994.  The proceedings regarding the 2nd Defendant continued until 8 September 2004 when the PI Master directed, inter alia, that:

“3.      The issue of liability as between the Plaintiff and the 2nd Defendant shall not be dealt with until after the hearing of the Assessment of Damages.  The Plaintiff and 2nd Defendant agree to be bound by the quantum of damages assessed at the said hearing (subject to the said issue of liability between the Plaintiff and the 2nd Defendant);

  4.      The Plaintiff may set down for hearing the Assessment of Damages before a Master with a time estimate of 1.5 hours.”

6. Pursuant to the above directions, the parties went before me for assessment on 8 November 2004.  The Plaintiff was legally-aid and Mr. Cleves of Messrs. Krishnan & Tsang appeared for him.  The 2nd Defendant was represented by Mr. Munro of Messrs. Munros.  Notice of hearing and all relevant papers were served upon the 1st Defendant on 7 September 2004.  The 1st Defendant was absent at the hearing.  Although its former solicitors had came off the court record, I was informed that the 1st Defendant was and is still having legal advice.

Assessment

7. Upon careful considering the evidence, authorities and submissions from the parties, I say the followings.

PSLA

8. The Plaintiff described the accident and his injuries as follows:

“	7.	……I was immediately in a lot of pain and I remember there was a lot of blood.  I shouted for help and the person outside I recall quickly forced open the outer door of the lift when an iron bar and called for someone to contact the police/ambulance.  I cannot recall whether the lift ascended to floor level.  I do not know the name of the person who rescued me.
	8.	I was taken to Princess Margaret Hospital – I had fractures of bones in my face which effected my teeth and ability to breath and an emergency operation was carried out to clear an airway.  Two days after I was admitted I had an operation to help keep my teeth in position.  I has a further operation on 11/9/90 in respect of the fractures to may bones.  I was in hospital for about 3 weeks.  I had a course follow-up treatment in the ENT Department of the hospital and South Kwai Chung Polyclinic.  I lost 30 lbs in weight after the accident and became very weak as I was unable to eat any solid food.
	9.	I was on sick leave for about 3 months.  I returned to my hold job but the company went out of business after about 6 months.
	10.	My present sympthoms are as follows:-

		a)	A depression of my left check-bone.
		b)	I cannot completely close both my eye-lids.
		c)	I have an “open bite” in that my upper and lower teeth do not close together as my lower teeth extend further then my upper teeth – this affects my ability to chew food and has affected the condition of my teeth and some have had to be removed.
		d)	I normally have to breathe through my mouth due to the blockage of my nasal air-passage.
		e)	My speech is slurred and unclear.
		f)	I suffer from stomach pain which was not present before the accident.  I think is because I cannot chew my food properly and this affects my digestion.
		g)	When my eyes are open, compared to there appearance before the accident, my left eye opens much more fully and my right eye less fully giving my eyes a “lop-sided” appearance.

The greatest affect upon me is my appearance.  I am very conscious of the cosmetic effect that it could have on other people both inside and outside work.  This has also affected me mentally and psychologically in that I have become depressed and more inclined to lose my temper with others.  It has effected my ability to make relationships and I believe that it has contributed to my difficulties in finding better paid work.”

9. The Plaintiff’s evidence was not contradicted.  It was further corroborated by the medical evidences before me.  In any event, I find the Plaintiff an honest and reliable witness.  By the Revised Statement of Damages filed herein on 24 September 2003, Messrs. Horvath & Giles sought to recover a sum of $620,000.00 pain, suffering, loss of amenity (“PSLA”) for the Plaintiff.  By its Answer filed on 24 October 2003, the 2nd Defendant said:

“The 2nd Defendant’s case is that the eyelids can be cosmetically improved by corrective surgery and the speech slurring can be improved.  The 2nd Defendant therefore proposes:   HK$400,000.”

10. Both the Plaintiff and the 2nd Defendant relied on the case of Leung Wing HCA 4409/1985 (unreported).  Mr. Cleves further referred me to Kam Kit Yuk v Chung Kwok Chun HCPI 1536/1995 for an overview of awards in different, categories of general damages and the approaches of the Court towards disability by appearance.  On the other hand, Mr. Munro asked me to pay further attention to Chan Pui Ki v Leung On and another, Poon Chung Fai HCPI 1050/1999 and consumer price indices published by the Census and Statistics Department.

11. I agree that, as a matter of principle, the authorities cited have laid down useful guidelines, but they should be flexibly applied to each individual case.  The Plaintiff herein suffered facial injuries.  “Operation(s)” have been largely successful but it did not cure everything.  The Plaintiff is still having psychological problems with his appearance and ability to chew and speak clearly.  On balance, in my view, it falls within the mid-range of the “serious” category.  Taking further with the Composite Consumer Prince Indices in September 2004 being “91.8”, I consider that the sum of $500,000 is appropriate in the circumstances.

Special Damages

12. The Plaintiff claimed a sum of $52,458.00 for loss of wages/income, medical expenses and value of the Plaintiff’s mother’s service during his rehabilitation period for 5 months.  The 2nd Defendant did not dispute them.  I grant such sum accordingly for the Plaintiff.

Future Expenses

13. By the said Revised Statement of Damages, the Plaintiff claimed the sum of $64,309.00 for future expenses for attending psychiatric treatment, dental treatment and related traveling expenses.  The 2nd Defendant was prepared to agree them, as per its Answer dated 24 October 2003.  At the hearing, Mr. Cleves sought to ask for 2 further items as per the medical experts’ latest advice, viz:

		$
(1)	Dr. Gordon Ma’s report dated 23 December 2003 for costs to pull the left lower eyelid to a slightly higher level	20,000.00
(2)	Dr. Gordon Ma’s report dated 14 January 2004 for costs of the fat drafting procedure to the left upper eyelid to give more fullness to the appearance	30,000.00
(3)	Ms. Polina Chan, speech therapist, for costs to improve the speech abilities	11,500.00
		61.500.00
		=======

To these new items, I consider them necessary, proper and reasonable.  I will allow them in full.

Loss of opportunity on open labour market

14. The Plaintiff sought the sum of $200,000.00 while the 2nd Defendant agreed only $108,000.00.  On evidence, I am satisfied that the Plaintiff has been exercised his best endeavours to look for a work.  He received a 30% Loss of Earning Capacity Assessment from the Review Board.  In his further statement filed, he said:

“2.    I was employed by Delta Express as a messenger / courier until May 2000 when my employment ended.  They had less work available.  I soon after obtained a similar job, on the introduction of someone who knows me, with a company called Hong Kong Courier Limited but the salary was only about $4,500 per month.  This lasted until August 2001 when the boss disappeared leaving two months wages due to all the staff.  The job was delivering letters and small packages using public transport like the MTR.

  3.    I have not had a job since although I have made many applications and have been to about 20 interviews for similar jobs.  When they see me, the employers normally say that the position has been filled.  I believe this is because they are put off by my appearance and the problem with my speech my that my facial problems have caused, and they just say this as an excuse, although no one has come out directly and said this to me.

  4.    ……

  5.    ……

  6.    In addition to my appearance I believe I am also am affected in my chances of getting work by my lack of physical strength which means I cannot pick up or carry heavier loads.  I would say I could only comfortably carry approximately 5 kgs. ……”

15. It cannot be disputed that the Plaintiff has suffered and will continue to suffer a loss of opportunity on open labour market, the Smith v Manchester Corporation Award is therefore appropriate.  Bearing in mind that the Plaintiff earned a relatively low income at the time of the accident, namely, $1,650.00 per month as a general worker having no formal qualifications and educated to middle 3 level, I consider that the sum of $150,000.00 is appropriate in the circumstances.

Interest

16. Generally, the Plaintiff is entitled to interest at the rate of 2% per annum on the general damages from the date of writ to the date of judgment.  However, as rightly conceded by Mr. Cleves, there has been some slight delay on the part of the Plaintiff and I will therefore exercise my discretion to allow interest on PSLA for 6 years until today only, as agreed by the parties.  In relation to interest for special damages, it is not necessary as the Plaintiff had received an early award from the Employee’s Compensation.

Conclusion

17. In the circumstances, I award to the Plaintiff damages in the sum of $780,267.00 together with interest at 2% p.a. on PSLA for 6 years until today.

	$
PSLA	500,000.00
Special Damages	52,458.00
Future Expenses	125,809.00
Loss of Future Earning Capacity	150,000.00
	828,267.00
Less: ECC Compensation	48,000.00
	780,267.00
	========

Costs

18. Both Mr. Cleves and Mr Munro sought costs against the 1st Defendant.  I see it fit for the Plaintiff, but not for the 2nd Defendant in the circumstances.  There be an order in favour of the Plaintiff against the 1st Defendant in relation to costs of and incidental to the assessment of damages.  As between the Plaintiff and the 2nd Defendant, each party will bear its own costs of the assessment.  Further, the Plaintiff’s own costs is to be taxed in accordance with the Legal Aid Regulations (Cap. 91).