LAM HAK SUN v. ATTORNEY GENERAL AND ANOTHER

1985, No. A2319

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. The facts giving rise to this action are neatly summarised in paragraph 2 of the Statement of Claim which I believe is worthy of repetition :-

"2. On the 19th day of May 1983 the Plaintiff was pushing a public light bus (Registration Number AS2238) along Rehabilitation Path near Lei Yue Mun Road, Kowloon, Hong Kong, when the 2nd Defendant, the servant or agent of the 1st Defendant, negligently drove, managed and controlled a refuse collecting vehicle (UC948) the property of the 1st Defendant along the said path so that the 2nd Defendant caused or permitted the nearside front wheel of the said vehicle to run over the right foot of the Plaintiff."

2. The result, however, for the Plaintiff was not in the least entertaining. He was admitted to hospital with multiple fractures of the bones in his right foot. He wore a cast for some weeks and used crutches for the next seven months. He had been a professional driver for 20 years; 10 as a taxi driver and 10 as a public light bus driver. At the time of the accident he was aged just under 55 and it is accepted he has not been fit to drive professionally since nor will be in the future. He now works as an attendant in a petrol filling station.

3. The writ herein was issued in April 1985 and in November last year an order was made, by consent, for interlocutory judgment to be entered. At the date of this hearing judgment had still not been entered but, as both parties were ready to proceed and witnesses brought to Court, I agreed to hear the assessment on an undertaking by Mr. Stables that judgment will be entered before this assessment is handed down.

4. Certain items of special damage were agreed between the parties and are accordingly allowed. They are :-

(a)	Hospital fees	$150.00
(b)	Crutches	$ 63.00
(c)	Registration fee for physiotherapy	$168.00
(d)	Queen Elizabeth Hospital follow-up	$ 76.00
(e)	Travelling expenses	$500.00

5. Two disputed items were a claim for $2,000 for Bonesetters' fees and $1,500 for tonic food.

6. Mr. Lam gave evidence that after receiving physiotherapy he consulted a bonesetter who massaged and "made applications" on his foot. He gave no evidence he believed this did him any good nor of the total cost. Much the same applies to Chinese medicine and tonic foods which he still takes. I make no allowance in respect of these items.

7. Both the Plaintiff and Mr. Choi Siu Sun gave evidence of the usual and expected income of a public light bus driver on the route worked by the Plaintiff. They explained the economics of rental and fuel costs. Miss Wong, for the Defendants, pressed them hard on their evidence but at the end of the day I accept it as disclosing a daily net profit of $220 with an average working month of 26 days.

8. The Plaintiff obtained his present employment in May 1984 and I am satisfied had not delayed unduly in doing so. His employer gave evidence of his earnings and changes in earnings. I accept the figures and they appear in the computation below.

9. The question of a multiplier in this case I have found particularly difficult.

10. Both from the evidence of the Plaintiff and of his fellow driver the work he was doing entailed long and arduous hours. I would not have expected a man to continue beyond the age of about 60. However, even now, the Plaintiff seems young and vigorous for his years. He married later than most and now has a young son. It is urged on me he would have continued well into his 60s or even 70s. Taking all factors into account I take 6 as the proper figure. My assessment of loss of earnings is :-

A.    Pre-trial loss

(i)	from date of accident to start of present employment 322 working days at $220 per day =$70,840.00
(ii)	from June 1984 to December 1984; 182 working days at $220 per day = $40,040.00 less earnings of $14,056.00 $25,984.00
(iii)	from January 1985 to 14 September 1985; 247 working days at $220 per day =$54,340.00 less earnings of $20,786.00=$33,554.00
(iv)	from 15 September 1985 to 14 January 1986; 104 working days at $220 per day = $22,880.00 less earnings of $11,832.00 = $11,048.00
(v)	15 January 1986 to 28 February 1986; 39 working days at $220 per day = $8,580.00 less earnings of $3,312.00 = $5,268.00

11. Thus the total pre-trial loss, to the nearest month end, is $146,694.00.

12. The evidence on likely changes in the income of public light bus drivers or of the possible changes in that of the Plaintiff was so uncertain that in assessing post-trial loss I adopt the same figures; that is the present monthly earnings of $2,208.00 compared with the notional earning of a public light bus driver at $220 x 26 = $5,720.00. This gives a loss of $3,440.00 per month. There remain 3 years and 1 month from the multiplier of 6 so the post-trial loss is:-

B.    Post-trial loss

$3,440.00 x 37 = $127,280.00

13. I accept Miss Wong's contention that the award for loss of earnings must be reduced by the amount the Plaintiff should have paid in tax on such earnings. No figures have been suggested to me but with a wife and one child I think an overall rate of 8.5% to be proper.

14. The net assessments, therefore, are :-

15. Pre-trial loss $146,694.00 - $12,469.00 = $134,225.00

16. Post-trial loss $127,280.00 - $10,818.00 = $116,471.00

General damages

17. Both Mr. Stables and Miss Wong referred me to a number of awards. The former to support a figure between $30,000.00 and $35,000.00. The latter to support a figure of $20,000.00.

18. Having considered those cases, and having heard Mr. Lam's evidence, I assess damages under this head at $35,000.00.

19. Credit will be given for any compensation already paid to the Plaintiff.

20. There will be interest on the special damages at the rate of 3.8% per annum from the date of the accident until judgment and on the general damages at the rate of 2% per annum from the date of service of the writ until judgment. There will be no interest on the post-trial loss.

21. There will be costs to the Plaintiff and the Plaintiff's own costs are to be taxed pursuant to the Legal Aid Regulations.