THE KANG OH v. WONG YIK FAI AND ANOTHER

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

PERSONAL INJURIES

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ASSESSMENT OF DAMAGES

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1. This is a claim for damages for personal injury. In the early hours of 4.6.94. the plaintiff, a self-employed night shift taxi driver was injured in an accident. At that time the plaintiff had been driving taxis for a living for about 12 months. He was 57 years old.

2. Liability was admitted, and consent judgment was entered against the defendants for damages to be assessed.

3. I begin with a brief summary of the accident, the injuries sustained and the treatment received by the plaintiff. On the night of the accident, the plaintiff's taxi had broken down. The plaintiff was standing outside his taxi, watching the process of the taxi being hooked to the tow truck. The taxi's hazard warning lights were on. The defendants' vehicle ran into the back of the taxi, pushing it forward towards the plaintiff, causing the plaintiff to be run over by his own taxi.

4. The plaintiff suffered multiple injuries. His right pelvis was fractured. There was a deep laceration to his right thigh. His right knee suffered cracks to the patella cartilage. The nerve of his left wrist suffered a compression injury.

5. He was hospitalised in Princess Margaret Hospital from 4.6.94. to 9.6.94. He was then transferred to Caritas Medical Centre, and discharged home on 21.6.94.

6. In March 1995 he was re-admitted to Princess Margaret Hospital for two operations, one on his knee, and the other for decompression of the ulna nerve at his wrist.

7. At the trial, the plaintiff gave evidence and called one witness, Mr Liu Kan. The defence called one witness Mr Poon Man Hown. Counsel were able to agree to many of the items claimed. These are listed post. I shall first deal with the disputed matters, beginning with the multiplicand and multiplier.

8. The plaintiff stated that at the time of the accident he plied his trade for 10 to 12 hours per shift on an average of 26 days a month. He calculated his take-home income in this way: he received $1000 to $1100 in fares per shift, out of which he had to deduct $250 taxi rental fees and another sum of between $140 to $160 for fuel.

9. It can therefore be seen that even if the lower figures quoted by the plaintiff were accepted, at the time of the accident his monthly income would be in the region of $14,300 (i.e.26x$550).

10. The defence stressed that the plaintiff was then already 57 years old. By reason of his age it would be "incredible" for the plaintiff to ply his trade for such long hours and sustain that effort for 26 days a month. The defence contended that the Court should instead have regard to the figures set out in a letter dated 30.1.97. from the Motor Transport General Union Taxi Driver Branch ("the letter") for the purposes of establishing median figures for taxi drivers incomes.

11. The plaintiff argued it was undesirable to adopt the figures in the letter in order to calculate the plaintiff's loss of income. Counsel pointed to the very generalised nature of the information imparted, that the calculations were based on an 8 hour shift, and to the of lack of detail on the size of the group from which the information was gleaned.

12. I found some merit to this argument. Furthermore, when considering the evidence of the letter, I noted that even the defence witness Mr Poon regarded the figures therein to be "rather low". In all the circumstances I therefore regarded the figures in the letter to be unreliable.

13. The important question on this issue was whether the Court could accept the plaintiff's evidence in regard to the 10 to 12 hour shifts.

14. The plaintiff gave evidence he was in good health before the accident, and indeed there is nothing put forward to challenge that assertion. The witnesses all agreed that it was physically possible for a taxi driver to undertake such a punishing regime, even Mr Poon. Initially Mr Poon, a night shift taxi driver of 25 years standing dismissed the possibility of anyone working such long shifts. Under cross-examination he moderated his stance somewhat. He stated that it would be "very rare" for someone his age, 58, to consistently work such long shifts.

15. The plaintiff painted a picture of himself as a man determined to earn as much as possible for the welfare of his family. He claimed to have worked with great endurance for unusually long hours, eating bread rolls instead of proper meals and so on. His case was that despite his age, he managed to summon up the necessary stamina to labour these very long shifts.

16. I paid careful attention to his demeanour in the witness box, bearing in mind his assertions. I found his assertions credible. He impressed me as having the necessary strength of character to endure such a punishing routine. I accept that the plaintiff did consistently work a 26 day month of 10 to 12 hour shifts. I therefore find that at the time of the accident the plaintiff's monthly income was about $14,300.

17. PW2 Mr Liu Kan gave evidence of the current earnings of a night shift taxi driver. He had been driving taxis on night shift since 1990, working 12 hour shifts an average of 26 days a month. After deducting expenses he claimed his present income to be about $675 per shift. If accepted, that meant an income of about $17,550 per month. I noted that PW2's evidence was not seriously contested. PW2 impressed me as an honest witness. I was satisfied that his figures were reliable, and I accepted them. I am also of the view that had there not been an accident, the plaintiff's present earnings as a night shift taxi driver would be comparable to that of PW2.

18. The calculation for loss of earnings is therefore : $452,855.

19. [The calculation being $642,308 (i.e. $15,925 x 40 1/3 months) less the notional tax liability at 4.6%; and less $159,907 (the sum agreed to be the plaintiff's earnings since the accident)]

20. It was hotly contested whether the plaintiff could now return to work as a taxi driver. The plaintiff stated he was not able to drive a taxi now because of his injuries. The plaintiff's main complaints were that he suffered pain at his right hip and knee area, and recurrent bouts of bilateral leg muscle cramps. He was unable to sit still for long and had to get up constantly. These complaints would rule out that possibility.

21. The defence submitted there was no clear evidence to show the plaintiff was unfit to such work. Counsel referred to a passage in Dr Danny Tsoi's report which stated:" Mr The is barely able to resume his pre-injury job as a taxi driver provided that he can rest for about 30 minutes at intervals of two to three hours" to support the contention that it was still possible for the plaintiff to return to his previous occupation as a taxi driver. I am unable to accept the defence's interpretation. The ordinary and reasonable meaning of Dr Tsoi's words must be that, the plaintiff might just manage to drive a taxi providing certain conditions were met.

22. I am satisfied on the evidence before me that it would not be feasible for the plaintiff to return to driving a taxi, for moderate periods or at all. I accept the plaintiff's evidence that his frequent bouts of cramps would threaten passenger safety, and that Hong Kong roads simply did not have easily accessible spots for him to take the necessary rest periods.

23. The plaintiff argues for a multiplier of 4, and the defence argue for a multiplier of 3. I have considered all the cases referred to by Counsel on the appropriate multiplier to be adopted. These included Li Yuen-Hung v Yau Yuk-Lan HCA No PI 504 of 1995, the cases of Yip Yuen, Chan Si Mui and Yau Shing Chiu, Sin Sau Mui v Yuen Sai Kwong & Ors HCA No. A11319 of 1993. Having studied all the cases referred to for features, or reference points which could be compared to the facts of the present claim, I was satisfied that a multiplier of 4 was appropriate in all the circumstances.

24. For the purposes of calculating the loss of future earnings, I accepted the plaintiff's submission that the notional income should be $17,550. That figure less tax comes to $16,743. When a multiplier of 4 is used, it produces a sum of $470,880.

25. I turn now to the claim for loss of earning capacity. A sum of $42,000 is claimed. Since Counsel for both sides agreed that the principles stated in Moeliker v A Reyolle & Co Ltd [1977] 1 WLR 132 was relevant, I will endeavour to consider the present circumstances with reference to the factors mentioned therein, bearing in mind that an assessment of loss of earning capacity is an assessment of the present value of the risk of the plaintiff finding himself on the labour market with the disadvantages of his injuries.

26. It may be recalled that on 30.10.95. the plaintiff had, with the aid of the Labour Department, found a job as a watchman with Colliers Jardine Properties Ltd. The plaintiff has now been in this job for 2 years. The plaintiff's present employers are a well known firm, and there is nothing to suggest that the firm's future is shaky. If the firm's future was threatened, or if the firm was to embark upon a redundancy exercise, the plaintiff's age and short service might put him at risk of being made redundant. Although the plaintiff has no special qualifications, and is aged 60, no special qualifications are required for work as a watchman. The plaintiff has difficulty negotiating stairs. Since watchmen have to patrol premises, this disability might put the plaintiff at a disadvantage. On the other hand, he has managed to work as a watchman since October 1995, and he has a watchman's licence until 2007, which must imply that he is regarded as being physically fit for the job. Weighing all the evidence I can find no substantial or real risk of his losing his present job during the remainder of his working life. In these circumstances no award will be made under this head.

27. There was a claim for $9000 for tonic food. This was not supported by receipts nor prescribed by any medical practitioner. In the circumstances only a nominal sum can be awarded. I accept the defence's contention that a nominal sum of $150 should be awarded, and on the basis of a 20 day hospitalisation period yields $3000.

28. There was a claim for $4000 representing the sum deposited with the taxi owner subsequently forfeited after the accident. It was not contested that the plaintiff had asked for his deposit back and had been rebuffed. The defence argue that the plaintiff had failed to prove that the forfeiture was directly caused by the accident.

29. In my view there was abundant circumstantial evidence to show that the forfeiture was directly caused by the accident. The contents of the written receipt does not mention this contingency. Applying common sense, the owner of a an object which is let out for hire normally requires a deposit of some kind, to guard against loss or damage. This is usual in the case of bicycles hires and paddle boat hires. It is also normal in the case of motorcar hire agreements, so it must be reasonable to imply this in the present circumstances. I accept the evidence put forward by the plaintiff and find that the deposit of $4000 was forfeited because the taxi was damaged as a result of the accident.

30. There shall be interest on general damages at 2% per annum from the date of the writ to the date of judgment and on special damages at 5.84% per annum from the date of the accident to the date of judgment.

31. I make a Costs order nisi for 14 days in favour of the plaintiff for costs to be taxed if not agreed, with certificate for Counsel. The plaintiff's own costs are to be taxed in accordance with Legal Aid regulations.