LEE WONG SIN v. The estate of WONG SHEK MEI, deceased and Others

1995, No.PI769
(formerly 1987, No.A779)

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. These proceedings arise out of an accident sustained by the Plaintiff at work on 9th March 1984, while working as a dim sum waitress, when she slipped on the greasy floor of the kitchen of the restaurant and fell.

2. Judgment was entered against the 2nd and 3rd Defendants on 13th March 1987 in default of notice intention to defend. The 1st Defendant has since died, and the 4th Defendant cannot be traced, so the Plaintiff has elected not to proceed against them.

3. As a result of the accident, the Plaintiff, who was then aged 60, suffered bruising to the right side of the face, and a Colles fracture of the right wrist, which was treated by closed reduction and plaster of paris cast. She was discharged the next day to be followed up in the outpatients' clinic, which she attended seven times over the next four months with sick leave certificates being given to her for the period to 31st May 1984. During the same period she attended the physiotherapy clinic three times a week for three weeks. Upon examination by Dr. Wedderburn in November 1984, she was found to have a "dinnerfork" deformity of the wrist, and radial displacement of the hand with a reduction in movement of the wrist and a grip of only 8lbs, compared to her left (unpreferred) hand which had a grip of 40lbs. His report states that the bone of the forearm was fractured transversely 3/4" above the wrist, the fragment was split, and had united with 15o of clockwise rotation and distortion of the wrist joint surface of the fragment. He remarked that this was a common result in women of her age. He said that a younger woman might be able to return to work, and by doing so increase muscle strength and dexterity, but it would be difficult for a woman of her age, and if she tried to do so, she would probably drop dishes. Her overall impairment he assessed at 10%.

4. By March 1992, when the Plaintiff was examined by Dr. Philip Mao, the grip in her right hand had increased to 18lbs, but it was still, according to him, far too weak to enable her to return to her pre-accident employment, and it was unlikely that she could have done anything but very light work not requiring the use of her right hand. He assessed the overall impairment at 11%.

5. In fact the Plaintiff has not worked since the accident, and says that this was because she still suffered pain in her right wrist. In my view, the weakness described by the doctors alone would have given her reasonable cause not to seek work. However, further misfortune was to befall the Plaintiff, as she had a stroke in August 1987, and Dr. Mao is of the opinion that, even if she had not had the accident, she would not have been able to return to work after that. Accordingly, on the authority of Jobling v. Associated Dairies [1981] 3 W.L.R. 155, she can only claim any loss of earnings up to that date. However, I find that the injuries she suffered, combined with her increasing age, made it difficult, if not impossible, to recommence employment before she had her stroke, and her loss of earnings to that date as a result of the accident was total.

Pain, suffering and loss of amenities

6. The only substantial injury to be considered here is the fractured wrist, the bruising being temporary and comparatively minor. Mr. Chong has referred me to three similar cases where the only substantial injury was the same as that here: Cheung Chi Young v. Tsang Cho Yiu HCA No.6575 of 1982, where a 40 year old man with a 7% impairment was awarded $25,000.00; Chan Yung v. Hung Ping Shun HCA No.3803 of 1983, where a 55 year old woman fractured her left wrist and a sustained number of other injuries, and was awarded $55,000.00; and Cheung Sze Kuen v. Wong Chi Cheung HCA No.2486 of 1984, where a 28 year old man with a 4% impairment was awarded $30,000.00.

7. The Plaintiff here has a higher overall impairment because of her age, but the lack of any other injuries other than bruising would lead me to equate her situation more with the last of the three cases cited, which, taking into account the inflation since then, would give damages of $57,000.00. Considering all the circumstances of this case, I am of the view that an appropriate award under this head is $60,000.00.

Loss of earnings

8. At the date of the accident, the Plaintiff was working 7 days a week, from 6 a.m. to 2 p.m. daily, as a dim sum waitress, earning a basic monthly salary of $1,550.00 with an overtime allowance of two hours a week at $10.00 per hour, and an annual bonus at Chinese New Year of $300.00. She was also provided with free breakfast and lunch, which I assess at a value of $15.00 per day. Her earnings and benefits were accordingly $2,105.00 a month, being $1,550.00 salary, $80.00 overtime, $25.00 annual bonus, and $450.00 in respect of the free meals.

9. Mr. Chong has drawn my attention to the Quarterly Report of Wages, Salaries and Employee Benefits Statistics, where the earnings of a female steward in a Chinese style restaurant in June 1984 are given as $2,856.00 a month, and in September 1987 as $3,381.00 a month, or an increase over the period of about 34%. As this is the best evidence available as to what the Plaintiff might have been earning in August 1987 prior to her stroke, I propose to adopt this increase in relation to her earnings. This gives a figure of $2,821.00 per month for August 1987, and a median for the whole period from the accident of $2,463.00 per month.

10. I accordingly award a total $101,600.00 in respect of loss of earnings, being $2,463.00 x 41.25 months.

Special Damages

11. I accept the evidence of the Plaintiff as to her expenses as claimed in the Statement of Claim and award the sum of $516.00.

Summary

Pain, suffering and loss of amenities	$60,000.00
Loss of earnings	$101,60.00
Special damages	$516.00
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	$162,116.00

12. From this must be deducted the sum of $39,800.00 being payment received by the Plaintiff in respect of Employees' Compensation.

13. The Plaintiff makes no claim for interest in respect of general damages in view of the long lapse of time during which this action was not proceeded with. However, there will be interest on loss of earnings and special damages at half the judgment rate from the date of the accident to the date hereof. There will also be an order for costs to be taxed in favour of the Plaintiff, whose own costs will be taxed in accordance with Legal Aid Regulations.