WONG YUK SEUNG v. LEE TAT SHU AND ANOTHER

Action No. 1959 of 1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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JUDGMENT

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1. On 24th August 1982 a collision occurred between a van driven by the plaintiff in the course of his employment and a truck driven by the 1st defendant and owned by the 2nd defendant. The 1st defendant, who was later convicted of careless driving, has filed no defence and taken no part in these proceedings. The inference that he has no means is obvious. Unhappily the 2nd defendant's insurers are in liquidation and he was represented at the hearing by counsel instructed by the Official Receiver. Liability having now been admitted by the 2nd defendant I am concerned only with the assessment of damages.

2. The collision was head on, and the impact trapped the plaintiff in his seat. He suffered shock, lacerations and abrasions to his head and right hand, and more serious injuries to his right leg where the right femur, patella, and talus were all fractured. The fracture of the patella was so serious that it had to be removed; and the right femur had to be restored with plates and screws. His initial recovery was slow and no doubt painful. He was detained in hospital until 12th November 1982 and then underwent protracted out-patient treatment for some five months until 8th April 1983. He was not able to return to light duties as his former work until the end of July 1983. He had to return to hospital again for some five weeks in April/May 1984 for two further operations: one for the removal of the plates and screws from his femur, and the other for the removal of some foreign body from his right hand.

3. In consequence the plaintiff now suffers principally from permanent weakness in his right leg. This is shown by a wasting of the thigh muscle above the right knee of more than five centimetres. The leg functions reasonably well in normal use but sudden or special exertion exposes its shortcoming and causes pain. There must be some risk of further injury to the exposed knee joint. Taking all these circumstances into account, counsel for the 2nd defendant fairly accepted that he could not dissent from an award of $40,000 for pain suffering and loss of amenity, and I agree with him.

4. The facts and figures relating to loss of earnings past and present were by the end of the hearing not in issue and were as follows:-

5. It is in the light of these facts and figures that I have to determine the impact on this case of the proviso to section 25(1)(a) of the Employees Compensation Ordinance which requires the court to "have regard to the amount which, by virtue of paragraph (b), has become or is likely to become payable to" the former employers by the defendants herein. A literal reading of this provision would point only to the figure of $20,000 because it does not seem to me "likely" that the claim by the employers against the 1st defendant will ever be pursued. But the words used are "have regard to" not "shall deduct". The purpose of this provision is to prevent double recovery: Chan Yuk-sum  v. Wong Pai-kwan (1973) HKLR 250. A broader approach therefore seems to me to be appropriate. I think I must look beyond the settlement figure, where extraneous circumstances like the insurers insolvency may well have intruded, and consider the ingredients of this award and what deduction requires to be made to avoid double recovery.

6. Taking separately the three elements in the award of $40,939.94 the position is:-

7. In my judgment the proper sum to be awarded for damages in respect of loss of earnings and earning capacity is the total of the sums of $17,542.25, $14,360.79, $5,400, and $12,420 i.e. $49,723.04: less $9,227.54. This produces a total of $40,495.50. To this must be added an agreed figure of $1,500 for the remaining items of special damage.

8. Judgment must accordingly be entered for the plaintiff against both defendants in the total sum of $81,995.50 with costs.