TSE YIE CHEONG v. WONG MAN PING

A6768/1985

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. At about 6.30 a.m. on the 14th Hovember 1983, the Plaintiff was riding a motor-cycle BL7990 on the Kowloon bound carriageway of Tai Po Road near Lower Shing Mun Road, Shatin, Yew Territories. A private car number CC5751 owned and being riven by the Defendant on the Shatin bound carriage way of the same Tai Po Road, suddenly and without warning, crossed the double white line dividing the two carriageways of the said Tai Po Road and struck the Plaintiff's motor-cycle and consequently the Plaintiff sustained serious injuries.

2. The collision was caused by the negligent driving of the Defendant.

3. The Statement of Claim was issued on the 4th November 1985 and on the 12th February 1986 interlocutory judgment with damages to be assessed was entered against the Defendant, no defence having been served.

4. The assessment of damages was before me on the 18th March 1986 at which the Defendant was not present.

5. After the accident, the Plaintiff was admitted to Queen Elizabeth Hospital. He was sustained fractures of both femurs and compound fractures of right tibia and fibula. The fractured right femur was treated conservatively.

6. In hospital he underwent the following operations :-

14.11.83 Open reduction, surgical toilet, external fixition for the compound fractures of the right tibia and fibula.

22.11.83 Open reduction and internal fixition of the fractured left femur with AO plate, partial thickness skin graft to the right lag.

7.2.84 Exploration and curettage of the infected right tibia.

17.3.84 Sequestreetomy of right tibia.

7. He was transferred to Princess I argaret Hospital on the 26.3.84 because of uncontrolled infection, failed external fixition and bone loss over the righty tibia. However, the osteomyelitis which had developed so severely in the right tibia did not respond to conservative treatment. Consequently a righty below knee amputation had to be performed on 20.4.84. He was discharged to Largaret Trench Rehabilitation Centre for rehabilitation on 7.5.84.

8. He was re-admitted to Princess Margaret Hospital on 9.10.84 because he experienced pain at the stump of the right amputated leg due to the development of a bursa and the dog ear. Revision of amputation was done (prominent bone end trimmed, bursa curetted, dog ear excised). He was discharged on 12.10.84.

9. His total period in hospital was 334 days.

10. He has been supplied with a prosthesis or artificial leg.

11. On the 16th October 1985, he was examined by Dr. R.G.M. Nedderburn whose findings are at p.15 of the Plaintiff's bundle which was the subject of the appropriate hearsay notice.

12. Dr. Wedderburn reports that the stump of the leg is two inches below the knee from the margins and three inches from the end of the stump. A fully functional stump should be at least 4 inches. If the Plaintiff walks for mere than 20 minutes, the skin tends to break down and at the examination he had 3 Band Aids on the stump where there were small open abrasions. Dr. Wedderburn agreed with the assessment under the Workman's Compensation Ordinance that a below the knee amputation is a 50% impairment of the whole man, particularly since the Plaintiff has only a partially functional stump.

13. Before the accident the Plaintiff had two sources of income.

14. He was employed by Mr. Lee Wing in a meat business and paid $2,400 per month therefor. He also worked for Mr. Ma Kang Yuen herding animals in an abattoir. He did this for 2 hours everyday of the month and received therefor the sum of $70 per day. On an average month of 30 days this would, of course, be the sum of $2,100 per month.

15. The Plaintiff returned to his occupation with Mr. Lee Wing on 2.10.85. Mr. Lee Wing gave evidence before me to the effect that he allowed the Plaintiff to resume his employment upon a charitable basis. He had considerable sympathy for the Plaintiff and in consequence was prepared to offer him a fetch and carry job at his previous salary. Mr. Lee Wing stated that his charitable approach could not pertain should times become bad and profits in his business diminish. The Court fully accepts this but never theless felt constrained to congratulate Mr. Lee Wing on his charitable approach and applauded his compassion.

16. The Plaintiff's ...(illegible) are assessed as follows :-

Pain, suffering and loss of amenities

17. I was referred to the case of Lee Ting-lam v. Leung Kam Ming [1980] HKLR 657. I was particularly directed to the definition of substantial injury. This category extends to cases of protracted treatment resulting in a much reduced degree of mobility, for example, an amputation where a prosthesis could not be used satisfactorily, or multiple injuries resulting in the need for regular treatment for the rest of the victim's life. The range of awards in this category was from $80,000 to $100,000.

18. Bearing in mind the multiple fractures suffered by the Plaintiff and the conclusion by Dr. Wedderburn that the prosthesis is not a satisfactory one, I have no difficulty in placing the Plaintiff's damage in the substantial injury category. I have little difficulty also in placing it at the top of this category where the award was deseribed in Lee Ting-lam as having a ceiling of $100,000. Allowing 60% for the fall in the value of money and the level of inflation, I make an award under P.S.L.A. of $160,000.

Pre-trial Loss of Earnings

19. From 14.11.83 until 2.10.85 the Plaintiff was unable to work at all. His loss of monthly earnings was accordingly $4,500 x 22½ months = $101,250.

20. From 2.10.85 to the date of this assessment (8/3/1986) the Plaintiff has been unable to undertake his second job which earned him $2,100 per month.

21. His loss accordingly for this period was 5½ months x $2,100 =$11,550 making a total under this head of $112,800.

Loss of Future Earnings

22. The Plaintiff is now 38 years of age. A multiplier of 13 has been suggested and after careful consideration I accept that as being appropriate. The loss of future earnings is accordingly $2,100 x 12 x 13 = $327,600.

Special Damages

23. The special damages represented by expenses incurred by the Plaintiff appear in this Statement of Claim as follows :-

24. These special damages have been amply justified by the Plaintiff's bundle of documents and by the evidence of the Plaintiff himself and make an award in this amount.

Loss of Earning Capacity

25. As I have stated above, the Plaintiff is employed by his present employer on a charitable basis. It is clear that the danger of him being thrown onto the employment market is a very real one. In this event, clearly a man with only one leg and consequent limited mobility would have extreme difficulty in finding a job.

26. It appears to me that this is exactly the situation envisaged by the Court of Appeal in England in Loeliker v. Reyrolle & Co. Ltd. [1976] ICR 253. Applying the principle set out in that case I am satisfied that the Plaintiff is entitled to an award under this head. As Hogaw L.J. said in Eaton v. Concrete (Northern) Ltd. [1979] CA 30., "Usually the assessment of damages under this head is nothing more than a guess to be made." However, I am satisfied that the award under this head should by no means be nominal. Accordingly I award the sum of $30,000.

Future care and attention

Replacement of artificial leg (prosthesis)

27. The Plaintiff is 38 years of age at the moment. The artificial leg will need to be replaced at least every two years. Taking account to the fact that his expectation of life is at least 28 years from the present moment. The leg will need to be replaced for 14 times.

28. At $1,450.00 per replacement, this results in an award of 1,450 x 14 = $20,300.

Summary

29. The summary of my award is as follows :-

30. There will be interest on the general damages at (1) and (2) above at 2% from the date of the writ and on the special damages at (5) at 4% from the date of the accident, both to the date hereof.

31. The Defendant will pay the Plaintiff's costs to be taxed if not agreed, and the Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.