LEE KWAN TONG v. LIU YEE LIM AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Assessment of Damages

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1. The Plaintiff was employed by Hong Kong Security Limited (now known as Securicor Hong Kong Limited) as a Telco Collector. By that post, he was required to perform both the task of a security guard and that of a driver, driving the security van of his employer. On 22.7.1988 at about 12:40 p.m., the Plaintiff was driving his employer's van along Kai Fuk Road Flyover when he met with a traffic accident. A taxi driven by the 2nd Defendant and travelling on the opposite carriageway dashed across the central double white lines and had a head on collision with the Plaintiff's van. The 2nd Defendant subsequently pleaded guilty to and was convicted of careless driving in San Po Kong Magistracy.

2. The Writ herein was filed on 28.1.1991. Apart from claiming against the 2nd Defendant in negligence, the Plaintiff also claimed against the 1st Defendant in vicarious liability as the registered owner of the taxi. The 1st Defendant denied liability on the basis that he had already sold the taxi to the Third Party. He also instituted Third Party proceedings seeking an indemnity from the Third Party.

3. The 2nd Defendant gave no intention to defend the action. Interlocutory judgment was entered against him on 18.3.1991 with damages to be assessed and costs to be taxed. On 4.10.1994, Master Wolley ordered that the damages be assessed by a master instead of at the trial and that further proceedings against the 1st Defendant and the Third Party be stayed until further order.

4. The various medical reports, records and proofs of income, receipts evidencing the medical expenses and employees' compensation records were produced at the assessment. The Plaintiff gave evidence and also called Dr. O'Donovan.

5. The medical reports show that, after the accident, the Plaintiff was admitted into United Christian Hospital where he stayed until his discharge on 16.9.1988. He was found to sustain fracture shaft of the right femur and compound fracture of the right tibia. Internal plating was performed for the fractured right femur and external fixation was done for the right tibia. Skin grafting was also performed as a result of skin necrosis developing on the right leg necessitating debridement.

6. After his discharge from United Christian Hospital, the Plaintiff attended regular follow up treatment. He was also re-admitted twice for adjusting the alignment of the fracture tibia by adjusting the external fixator. The healing of the tibia was not satisfactory and bone grafting was performed in November 1988. The operation was performed by Dr. William Yuen at Baptist Hospital, where the Plaintiff stayed 17 days. The Plaintiff explained that he opted for a specialist at a private hospital as he was afraid of becoming permanently disabled. I cannot say that his fear was unjustified nor his decision unreasonable since it was 4 months past the accident and the healing process had not been satisfactory.

7. Thereafter, the Plaintiff attended Dr. Yuen for follow up treatment until July 1989. He also attended physiotherapy treatment at United Christian Hospital, lasting for about a year.

8. The Plaintiff was examined by Dr. O'Donovan in 1990. According to the report dated 30.5.1990, all the scars were found to have healed. While the thigh fracture had healed without shortening, the tibial fracture had healed with a 4 cm. shortening resulting in a pelvic tilt. The Plaintiff walked with a limp and he needed resting after walking for about 20 minutes. He felt pain and numbness in the right leg. In the doctor's opinion, the tilt would develop into low back pain if the Plaintiff did not wear raised heel shoes. In addition, the fractures would in future affect the supply of blood to the lower leg. As for the right knee, it crunched as the Plaintiff walked. Mild to moderate osteoarthritis had occurred causing pain and reduced function. Medication for osteoarthritis was considered to be necessary as time went by.

9. The Plaintiff was examined by Dr. O'Donovan for a second time in 1995. The Plaintiff continued to have pain in the right leg and could not stand, sit or walk for too long. There was further muscle wastage due to reduced use of the right leg. The X-ray did not show significant problem of arthritis in the leg. The risk of developing circulatory problems in the lower leg remained, albeit reduced. The right knee had resumed full movement, but there was definite sign of osteoarthritis.

10. Dr. O'Donovan had a brief examination of the Plaintiff before he took the witness stand. He observed that the Plaintiff continued to walk with a limp. He accepted that the Plaintiff would still feel pain and require resting after walking for 40 - 60 minutes. He assessed the Plaintiff to have suffered a disability of 2% of the whole man for the thigh fracture, if the existing plating were to be removed, another 5% for his tibial fracture and a further 5% for the ligament laxity in the right knee. In addition, there is a 30% likelihood that in 20 years' time, the Plaintiff would suffer an additional 3 to 5% disability due to the pelvic tilt and circulatory problems in the lower leg.

11. The Plaintiff himself gave evidence. He was 32 at the time of the accident and is now 40 years old. He was married with 2 children but has since divorced. He now lives with his mother. He returned to work with the same employer on 28.11.1989, after the sick leave expired. He did not resume the same post as his physical condition no longer permitted. He took up office duties instead. His salary and fringe benefits were no different from other staff performing similar duties. He stayed with the same employer until 6.7.1994. In November 1994, he found another job as a courier, but working from the office. Owing to his injuries, his performance did not come up to the employer's expectation and he lost the job in May 1995. Since then, he has encountered difficulties in settling down for a job. He had worked as messenger, hawker and vehicle attendant, but could not stay long in any one job. He was either physically unable to cope with the job or being considered unfit or unsuitable by his employers. Between May 1995 and March 1997, he had worked in total for not more than 7 months with an average monthly earning of $2,000.

12. The Plaintiff stated that he had received employees' compensation in the sum of $76,030.33. He had also borrowed $25,000 from Securicor Hong Kong Limited to meet the medical expenses for the bone grafting operation. The loan remains outstanding.

13. According to the Plaintiff, he cannot now stand or sit or walk for too long. He has to take a rest after walking for 40 - 60 minutes. He said he used to be an active person and enjoyed swimming, ball games, hiking and exercising in health centres. After the accident, he can no longer take up sports and outdoor activities. He also cannot wear shorts because of the scars on the leg. The Plaintiff also stated that he had lost confidence in driving vehicles as a result of the accident.

Pain Suffering and Loss of Amenities

14. The Plaintiff was hospitalised for nearly 2 months during which he had an operation and skin grafting. He was re-admitted twice afterwards. He was further hospitalised for 17 days for the bone grafting operation. He was granted approximately 16 months sick leave. He now walks with a limp. He has to give up driving and also sports and outdoor activities. He cannot wear shorts.

15. Mr. Li submitted that the Plaintiff's injuries fall within the lower end of the "serious injury" category in Lee Ting Lam v Leung Kam Ming [1980] HKLR 657. I was referred to a total of 11 cases for reference and comparison purpose. Most of these cases are not appropriate comparables because the injuries involved were either far more serious or much less serious than those of the Plaintiff herein. The more comparable cases are Lam Kwong Ting v Ho Yau Yuen & Anor HCA No. A1582 of 1990 (21 August 1990), Lee Ching Por v Ban Wu HCA No. A1524 of 1990 (5 October 1990), Chung Wing Kwong v Leung Kam Fai HCA No. A4783 of 1991 (18 December 1991) and Tse Hung Kuen v Quon Hing Mainwell Concrete Ltd. & Anor HCA No. 11359 of 1993 (20 December 1994). The injuries and disabilities of the Plaintiff herein are similar to those in Chung Wing Kwong, in which an award of $150,000 was made, and slightly more serious than those in Lee Ching Por, where the award was $160,000. It was also submitted that in the light of the decision in Leung On v Chan Pui Ki Civ. App. 263 of 1995 and having regard to inflation, the award for the lower end of "serious injury" category should now stand at $450,000 to $500,000.

16. Considering the authorities cited to me, I agree that the present case falls within the lowest end of the "serious injury" category. The fractures had left the Plaintiff with "a disability which mars his general activities and enjoyment of life". The award for this category has been revised to $400,000 to $540,000 by the Court of Appeal in Chan Pui Ki in the middle of last year. Taking into inflation since the decision, the award to be made under this head is $440,000.

Loss of Earnings / Earning Capacity

17. At the time of the accident, the Plaintiff earned $3,055 per month as a telco collector. This was higher than the average salary of his other colleagues as the Plaintiff had also to drive the security van. When he resumed employment in November 1989, his salary was about $4,600 per month. The salary was annually revised to reflect, among other things, inflation. When he left his employment in July 1994, he was a telco supervisor earning an average monthly income of $9,750. Hence, if he had been able to remain in the same employment, his average monthly income at the time of the assessment will be about $13,000 (i.e. $9,750 x 1.1 x 1.1 x 1.1 = $12,977).

18. The Plaintiff lost his employment as telco supervisor on 6.7.1994 and was unemployed until 1.11.1994. His new employment as a courier fetched an earning of $8,000 per month. He stayed in the employment until 1.5.1995. Since then, he had no regular employment and had managed to work in total for 7 months making about $2,000 per month.

19. The pre-trial loss of earnings from the date of accident on 22.7.1988 to the date of the assessment on 26.3.1997 is as follows :-

20. The Plaintiff is now aged 40. It is reasonable to expect that, but for the accident, he would have remained working as a telco collector until his retirement, although it is probable that he would also change to office work either because of promotion or because of age limitation. The income he would have made as a telco supervisor as at March 1997 is about $13,000, as indicated above.

21. Although he is presently unemployed, Dr. O'Donovan had commented that he should be able to take up sedentary work without difficulty. He suggested jobs such as caretaker, cashier and messenger. Mr. Li had in the course of his submissions referred to the September 1996 government report of wage statistics which recorded the average monthly salary for a messenger in the electronic industry is $8,421, that of a watchman is $7,642 and that of a cashier is $8,839. Accepting that it is more common for the retail industry to employ female cashiers, the income of a messenger is adopted for calculating the notional income that the Plaintiff will have earned when he succeeds in finding an employment. Based on the September 1996 figure of $8,421 and allowing an increase of 5% since then, it will have reached $8,842 in March 1997.

22. Mr. Li submitted that 12 will be an appropriate multiplier. For that purpose, he referred me to a Multiplier Table compiled by Mr. Michael Ozario Q.C. and Mr. Victor Gidwani up to July 1996 which extensively digested the personal injuries (non-fatal) cases decided since 1968. The Table shows that a multiplier of 12 had been adopted in 3 cases in which the Plaintiffs were all aged 40 at the date of the assessment. The 3 cases, Irene Piper (1977) 7HKLJ 143, Li Tung Chun (1981) 11 HKLJ 120 and Own Sheung (1974) 4 HKLJ 342, were also cited to me. In the latter 2 cases, the Plaintiffs were lorry and taxi drivers respectively. Considering the Table and the authorities, I agree that the appropriate multiplier is 12.

23. The loss of future earnings is thus ($13,000 - $8,842) x 12 x 12 = $598,752.

24. The Employees' Compensation (Ordinary Assessment) Board had in February 1990 assessed the Plaintiff to have suffered a 15% loss of earning capacity. In May 1990, Dr. O"Donovan assessed the loss of earning capacity to be 20% with a rise to 30% in 20 years' time. The same assessment was maintained at the hearing.

25. It is beyond doubt that the Plaintiff is unsuitable for the job of security guard. Although he should be fit physically to work as a driver, he is psychologically unable to do so. As Dr. O'Donovan observed, this is understandable since he met with a head on collision while driving and sustained serious injuries as a result.

26. Dr. O'Donovan was of the opinion that the Plaintiff should be able to take up sedentary jobs and in full capacity. Notwithstanding that, Mr. Li submitted that there is a real risk that the Plaintiff would suffer prejudice in the I abour market due to pain in his leg. He relied on the difficulties experienced by the Plaintiff since May 1995 in remaining in steady employment. He therefore submitted that a modest award of $100,000 should be made to reflect the loss of earning capacity.

27. The authorities have now established that evidence is required before an award is made under this head and that an award on the basis of a conventional sum is inappropriate. On the other hand, it is recognised that an award can be made for loss of earning capacity even though the plaintiff is not in actual employment at the time of assessment.

28. Although the evidence does not show the precise education level of the Plaintiff, I infer from the employment at the time of the accident that the Plaintiff was probably educated up to no more than secondary school level. With that education background, the Plaintiff is likely to remain as a manual worker. Given the injuries he sustained and that he cannot cope with work which is physically stressful, the choice of employment available to him will not be many. Considering this and having regard to the difficulties he had in finding job in the last 2 years, I accept that if the Plaintiff were to take up sedentary work as advised by Dr. O'Donovan, there is a real risk that he would lose his employment due to his leg pain and disabilities and that he would need longer time to find replacement employment than a normal and healthy person. The risk, however, is not very great since he should be able to discharge sedentary work in full capacity. An award representing approximately 12 months salary, being $100,000, is therefore appropriate.

Other Special Damages

29. The claims under this head comprise medical expenses, travelling expenses of the Plaintiff for attending follow up and physiotherapy treatments, travelling expenses incurred by the Plaintiff's family in visiting him in the hospital, damage to clothing and tonic food. The medical expenses are supported by receipts. It is noted that the Plaintiff had stayed in the private ward during his hospitalisation in United Christian Hospital. The Plaintiff explained that, because of his skin necrosis and the skin grafting operation, he had to stay in an air-conditioned ward and there was no such facility available in the public ward. As to the other expenses, the amounts are reasonable and I allow them as claimed.

30. The amount of other special damages to be recovered is as follows :-

Conclusion

31. The total sum awarded is therefore $1,051,114, the breakdown of which appears as below :-

Plus :

Less :

32. There will also be interest on the special damage at the rate of 5.75% p.a. from the date of the accident to the date of the assessment and on general damages (excluding loss of earning capacity) at 2% p.a. from the date of the Writ to the date of the assessment.

33. I also make an order nisi that the Plaintiff shall have the costs of the assessment to be taxed against the 2nd Defendant, if not agreed and that the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulation. The order nisi to be made absolute after the expiration of 14 days from the date of the handing down of the assessment.