HO SHUI CHING v. CHU DIM

1992, No.A7286

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 incident which occurred on 15th January 1991 when Mr. Ho Ming Sung was assaulted by the Defendant who beat him with his firsts resulting in injuries which included a rupture of the left eyeball. A writ was issued against the Defendant on 23rd October 1992 and judgment by consent, for damages to be assessed, was entered on 8th January 1993.

2. The assessment of damages commenced before me on 29th March 1995, but, owing to insufficient time being available, was adjourned part heard, after oral evidence had been completed. An unfortunate sequel to this was that, shortly after the first hearing, on 3rd April 1995, Mr. Ho died from causes unconnected with his injuries, and his brother, Mr. Ho Shui Ching, was appointed to represent the estate for the purpose of these proceedings. The assessment was concluded on 7th September 1995 with judgment reserved.

3. At the date of the incident which gave rise to these proceedings, Mr. Ho Ming Sung was aged 59 years and was employed as a driver of a student bus by a Madam Cheung Yuk Kit. He was hospitalised for about nine days and then had follow up treatment in Tang Chi Ngong Specialist Clinic, which was still continuing at the date of the first hearing. As a result of the incident, Mr. Ho suffered complete loss of vision in his left eye, and gave evidence that he still experienced pain and weeping of the eye which had also been susceptible to infections, and used eye drops prescribed for him about four times a day. He also suffered two broken teeth and a laceration of the face.

Pain, suffering and loss of amenities

4. It is clear from the evidence of Mr. Ho that the loss of vision in his left eye caused difficulties and inconvenience which might have been less severe in a younger man who could adapt more easily to the situation. He suffered loss of confidence in crowded places, walked into objects he did not see on his blind side and gave up driving, which had been his sole source of income, and a large part of his social life.

5. Mrs. Hadiwibawa has referred me to a number of authorities, the first of which, Pang Kwai Wah v. Tsang Kwong Wing (HCA 5582 of 1987) bears a striking similarity to this case, arising also out of an assault, and in which Master Perrior, after considering the consequences of loss of vision in one eye, and the inconvenience and difficulties thereby caused, particularly in Hong Kong's crowded environment, awarded a sum under this head of $150,000.00. In Lam Yau Yuk v. A.G. (HCA 5655 of 1986) Duffy J., in dealing with a similar case, except that the injured eye had been replaced with a prosthesis, placed the injury at the top of the "serious injury" category in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657 and awarded the sum of $180,000.00.

6. Both these decisions were in 1988, and the levels of award for the categories in Lee Ting Lam have been revised at least twice since then. The latest decision in which the levels were considered was that of the Court of Appeal in Chun Yat Nam v. A.G. (C.A. 92 of 1994) where the level of damages for the serious injury category was revised to $250,000.00 to $335,000.00.

7. I agree with Mrs. Hadiwibawa that the injury in this case, and the resulting pain, suffering and loss of amenities, puts the case towards the top of that category, and I accordingly consider a proper figure to award under this head is $335,000.00. Were I to place it at the very top, I would award slightly more to take account of inflation since the Chun Yat Nam decision.

Loss of earnings

8. At the date Mr. Ho sustained his injuries he was employed by a Madam Cheung Yuk Kit as a driver, for which he received a basic salary of $2,000.00 per month for 26 days work during school terms. In school holidays he still received his basic salary except for the month of August. His evidence was that he also was either provided with lunch and morning tea daily or given $20.00 to pay for his own. In addition to this he said that Madam Cheung paid him further sums when she went on trips away from Hong Kong two or three times a year, and he had extra work, and further sums of money at major festivals. His assessment of the total he received was $3,200.00 a month and this was supported by the evidence of Madam Cheung. While I accept that the nature of the payments made to him, and the value of the meals provided, are not easy to quantify in retrospect, I believe that Mr. Ho and Madam Cheung have done their best to arrive at an accurate figure and I will accept their evidence of his earnings at that sum.

9. Mr. Ho was given sick leave from the date of injury until 2nd May 1991, but did not in fact work again until the date of his death on 3rd April 1995. He had an pre-existing problem with his chest which had resulted in him having a lung removed in 1980, and while this was not sufficient in itself to prevent him maintaining steady employment before the incident which he was injured, it clearly affected his general state of health. as he could no longer drive and in view of his increasing age, together with his chest problems, I do not consider it unreasonable that he felt he could no longer work. Indeed, it is difficult to imagine what sort of work he would have been able to do. In the circumstances I accept that he suffered a total loss of earnings as a result of his injuries to the date of his death.

10. Mrs. Hadiwibawa asks me to find that Mr. Ho's earnings would have risen in line with inflation at about 10% a year, giving him a monthly income at the date of death of $4,685.00. While this is not an unreasonable assumption in the normal course, it is clear that Madam Cheung's business was a small business, dependant on turnover and his pay would have increased only with the profitability of the business, rather than strictly in line with inflation. Doing the best I can, on the evidence before me, I consider that his earnings would have risen to $4,400.00 per month, giving a median of $3,800.00 ($3,200.00 + $4,400.00 ÷ 2), and a loss for the period of 50.5 months to the date of his death of $191,900.00.

Special damages

11. These were agreed by the parties at a total of $1,334.60 for travelling and medical expenses, and tonic food.

Summary

Pain suffering and loss of amen	$335,000.00
Loss of earnings	$191,900.00
Special damages	$1,334.60
	$528,234.60

12. There will be interest on special damages and loss of earnings at 6% from the date of the incident which gave rise to these proceedings, 15th January 1991, to the date of Mr. Ho's death, 3rd April 1995, and on general damages at 2% from the date of the writ. The Defendant is to pay the costs of the Plaintiff to be taxed with a certificate for counsel, and the Plaintiff's own costs are to be taxed in accordance with Legal Aid Regulations.