CHEUNG SZE KUEN v. WONG CHI CHEUNG AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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BETWEEN

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ASSESSMENT OF DAMAGES

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1. On 31st July 1982 the Plaintiff, Mr. Cheung Sze Kuen, was travelling as a passenger in a Public Light Bus driven by the 1st Defendant and owned by the 2nd Defendant, when it left the road and struck a tree. As a result of the accident the Plaintiff sustained a number of injuries, and these proceedings were commenced by him on 12th April 1984 against both Defendants.

2. No acknowledgement of service having been filed by the 1st Defendant, interlocutory judgment was entered against him on 10th January 1985 and on 8th November 1985 leave was given to proceed to assessment of damages against the 1st Defendant notwithstanding that there is as yet no judgment against the 2nd Defendant.

3. At the outset of this hearing, application was made on behalf of the Plaintiff, and leave was granted, to amend the Statement of Claim to include scarring to the face and neck, not mentioned by earlier medical reports, to allow for changes to the Plaintiff's present medical condition owing to the passage of time, and to re-calculate the special damages as a result of subsequent information coming to light.

4. A number of documents were produced, the necessary notices under the Evidence Ordinance and the Rules of the Supreme Court having been served, and two witnesses were called in addition to the Plaintiff himself.

5. At the date of the accident the Plaintiff was a restaurant waiter aged 28 years and the principal injury he sustained was a fracture of the right wrist of the type known as a "Colles "' fracture. He was admitted to Princess Margaret Hospital where he remained for three days during which a plaster-of-Paris cast was applied and he was then transferred to Yan Chai Hospital for a further week, before being discharged.

6. However, about two weeks later he was re-admitted for a further reduction of the fracture as the fragments of bone had moved, and had a new cast for a month.

7. Although I have said that the fracture to the wrist was the principal injury, it is apparent that it was not the only one. The comparatively brief medical reports from Princess Margaret Hospital also mention a shoulder injury, of which the Plaintiff only complained about a year later, but the Plaintiff in evidence said that he also suffered lacerations to the face and neck and scratches to the leg. These latter injuries are not mentioned in the hospital reports at all although they are in a "Medical Enquiry Form" dated 11th March 1983, but the Plaintiff certainly has noticeable scars on the face and neck and Dr. Hodgson, who gave evidence, confirmed that he believed they were caused by the accident as was also the shoulder injury, and I accept that evidence.

8. Following the Plaintiff's final discharge from hospital he attended physiotherapy and occupational therapy clinics, receipts for the fees of which were produced, and attended a bonesetter in respect of his shoulder injury. His present complaints are set out in Dr. Hodgson's report of 18th November 1985, but may be summarised as a permanent weakness and deformity of the right wrist, weakness of the right shoulder, and scarring of the face and neck which is noticeable although not disfiguring.

9. As a result of these complaints, I accept Dr. Hodgson's opinion that the plaintiff cannot return to his pre-accident employment as a waiter as he can no longer carry heavy weights, or even moderate weights over a prolonged period, and in particular cannot carry a tray with the palm uppermost. Indeed, he is now effectively prevented from pursuing any occupation which involves lifting heavy weights and is presently employed in a plastics factory.

10. As to the Plaintiff's pre-accident earnings, I heard evidence both from the Plaintiff himself and Mr. Fung Fu Leung, the manager of the Hang Fa Village Restaurant, Yuen Long, where the Plaintiff was then employed as a waiter. I accept their evidence that he earned $2,500.00 per month basic salary, plus about $800.00 tips, overtime payments of about $360.00, meals to the value of $786.00, and an annual bonus and double pay to a total of $3,000.00, giving an average monthly income of $4,600.00 per month.

11. Following the accident, the Plaintiff was unable to work at all for some 9½ months until he secured employment on 16th May 1983 at a plastics factory, and he is therefore entitled to the total loss of income for this period of $43,700.00.

12. Since the 16th May 1983 he has been continuously employed in the same line of work, apart from a short period which I propose to disregard, earning initially $55.00 per day to 7th November 1983, $60.00 per day to 15th October 1984, and $65.00 per day until today. The Plaintiff says that he can work 26 days a month which makes his average monthly earnings, with an annual bonus and double pay at Chinese New Year, $1,549.00, $1,690.00 and $1,830.00 respectively.

13. I am satisfied that the Plaintiff has been unable to obtain employment at a higher rate of pay since his accident and I therefore calculate his partial loss of earnings from 16th May 1983 to date at $95,985.75 (i.e. 33½ months @ $4,600.00 per month less 5¼ months @ $1,549.00, 11¼ months @ $1,690.00 and 16½ moths @ $1,830.00).

14. The Plaintiff's claims for hospital expenses, outpatient, physiotherapy and occupational therapy fees and travelling expenses for himself and his family were all supported by receipts or the Plaintiff's own evidence, with the exception of the $40.00 claimed for three visits to Princess Margaret Hospital end three trips at $9.00 each to South Kwai Chung Polyclinic. These are accordingly allowed at a total of $659.80.

15. As to the bonesetters fees and the cost of Chinese medicine and tonic food, the sums claimed are all supported by receipts and were reasonably incurred in accordance with the principles now accepted by the Hong Kong Courts, and I accordingly allow these items in full.

16. I now come to the question of general damages for pain, suffering and loss of amenities, and for loss of future earnings.

17. As to the former head of damages, I have before me a medical report of Dr. R.G.M. Wedderburn dated 21st May 1985, and of Dr. Hodgson dated 18th November 1985. In addition Dr. Hodgson gave evidence and confirmed and enlarged on his report.

18. Both doctors are largely in agreement that the Plaintiff has been left with a loss of strength in the right arm which can be measured by contrasting his right-hand grip (the Plaintiff is right-handed) of about 70 lbs. to his left-hand grip of about 85 to 100 lbs, a loss of flexion, a loss of some shoulder movement, and wasting of muscle in the right arm. Neither considers any further improvement will take place and Dr. Wedderburn puts his impairment at 4% of the whole man, and 7% of the right arm.

19. Mrs. Barnes has referred me to a number of cases and on the basis of these, and taking into account the Plaintiff's cosmetic disability, I think a proper award would be $30,000.00.

20. As to loss of future earnings, Mrs. Barnes submits that a multiplier of 15 should be adopted, the Plaintiff now being aged 31. I consider this to be on the high side and I propose to assess this head on a multiplier of 14. Taking the monthly loss immediately pre-trial as calculated above, namely $4,600.00 -$1,830.00=$2,770.00, the resulting figure for future loss is $465,360.00 ($2,770.00 x 12 x 14).

21. Summary

22. There will be interest on the special damages of $142,609.55 at the rate of 4% from the date of the accident, and on the damages for pain, suffering and loss of amenities at the rate of 2% from the date of writ. There will be no interest on the award for loss of future earnings.