Shum Kam Fai v. The Kowloon Motor Bus Co. (1993) Ltd. and Another

HCPI 136/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 136 OF 2000

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ASSESSMENT OF DAMAGES

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1. On the 2nd February 1999, the plaintiff who was then aged 35, was involved in an accident when a KMB motor bus crashed into a tipper lorry registration number HB891, which was then in the process of being rescued. This triggered off a chain collision with 2 other vehicles. The plaintiff was then standing in the vicinity monitoring the rescue operation of his vehicle. He was knocked down and rolled under into the underside of vehicle HB891. Interlocutory Judgment on full liability with damages to be assessed was entered on the 23rd August 2000. On date of assessment, the plaintiff is aged 38.

Injuries

Treatment

2. After the accident, the plaintiff lost consciousness. He did not come around until he was admitted to Tuen Mun Hospital. He was found to have suffered a fracture of his right 6th rib, fracture to the neck of the left fibula, extensive loss of soft tissue around the postero-lateral aspect of left thigh and calf including thigh muscle loss on his left thigh. This is seen in a wound measuring 150mm x 80mm over the lateral aspect of the left thigh. The left leg wound was treated by repeated debridement and skin graft obtaining from his right thigh. Mr. Shum was transferred to Pok Oi Hospital on 24th February 1999 for rehabilitation. The wounds eventually healed and Mr. Shum was discharged on 5th March 1999. He was required to walk with crutches upon discharge. He was subsequently referred to physiotherapy for strengthening exercise.

Present Physical Condition

3. There is not much variance in the opinions of the medical experts of the two parties on the present condition of the plaintiff. Dr. Danny Choi, the medical expert of the plaintiff, found the following on his up-dated report dated 27th September 2000.

Right Lower Limb

4. There is a scar over the back of right thigh for donor skin graft. There is a 1 x 6 cm non-hypertrophic scar but with hypopigmentation over right calf, with impaired sensation. There is tenderness on deep palpation of right calf. There is some persistent swelling of right ankle and foot. This persistent swelling over the right ankle and foot suggested that the venous return was insufficient after the severe soft tissue injury around the calf. The constant swelling will give rise to persistent soreness, easy fatigue and frequent muscle cramps. There is full range of motion of right knee and ankle with normal muscle strength at all planes of motion.

Left Lower Limb

5. There is a huge hypertrophic scar over postero-lateral aspect of thigh, extending down through knee to upper calf, measuring 18 x 8 cm. Loss of underlying soft tissue and tenderness were detected. There are multiple scars also with loss of underlying soft tissue over medial aspect of upper shin. There is gross wasting of left thigh and to a lesser extent calf muscle. Medial collateral ligament laxity was detected (Grade II) in the left knee. Anterior Cruciate Ligament injury was suggested. There is loss of patellar mobility with tenderness on grinding patella against femoral condyles. There is some minor loss of range of motion of the left knee and some minor weakness on knee flexion and extension was noticed.

Right Side Chest Injury

6. The fractured ribs have already healed up completely. However there is still residual chest wall ache which did not resolve completely.

Present Problems

7. The plaintiff suffers from gross stiffness over left knee, inability to squat, kneel or climb stairs, significant weakness of left lower limb, unable to stand or walk for long distance and needs a stick to assist walking for all outdoor activities. There is a sense of instability over the left knee, with problems of frequent attacks of give way. There is pain over medial side of left knee, especially after prolong standing.

8. Both medical experts Dr. Choi for the plaintiff and Dr. Chiang of the defendant were of the opinion that the plaintiff would not be able to resume his pre-injury job of a tipper lorry driver. They stated that light duty work without climbing, squatting, long hours of walking, and heavy weight lifting are suitable for him. Examples of such work as cashier, carpark attendant, shop assistant and telephone operator.

PSLA

9. The defendant's Counsel conceded that based on the injuries suffered by the plaintiff it is fair and just to make an award for pain suffering and loss of amenities within the region of $500,000 - $600,000. In my view the injuries suffered by the Plaintiff is comparable to that of Fung Bo Ha v. Tank Tik Chung and Law Ho Cheung in PI Action No. 1368 of 1999. In that case, the plaintiff was a 45 year old lady who sustained principally a comminuted fracture of the distal region of the right fibula and a fracture of the great tuberosity of the head of the right humerus. There was a deep laceration over the lateral aspect of the right ankle. She also had multiple abrasions of the forehead, bruising and swelling of the right shoulder, multiple abrasions of the upper abdomen, right calf and knee. The right ankle injury was complicated by wound infection and skin flap necrosis. She underwent at least six operations in respect of the injuries to the right leg and upper arm. Although the right shoulder has healed reasonably well, she still has stiffness and wasting. She has been left with significant and permanent disability in her right leg. Arthritic change is already advanced. There was bony fusion of the posterior talocalanean joint. There is also deformity of the distal right fibula consequent upon the healing of the fracture. She walked with a walking stick and walks with difficulty. She has pain on standing up and numbness on sitting for any period of time.

10. The effect of the plaintiff's injuries are more or less of the same level of seriousness as that of Fung Bo Ha. The plaintiff further suffers the loss of amenity of not being able to continue his pursuit in martial art of which he was an avid disciple having entered into various competitions. Some consideration has to be given to this. He also has some ugly scars which are apparent when wearing shorts. In view of this I am satisfied that an award of $650,000 for this head is appropriate.

Loss of Earning as a Tipper Lorry Driver

11. The plaintiff is the owner of Kam Fai Transportation Company. He has been running the business since 1996. The Company had three 24-ton tipper lorries at the time of the accident. Their registration numbers were HB891, HF2488 and HJ8741. The plaintiff stated that he drove the tipper lorry registration number HF2488 at all times before the accident. He is suing for loss of earnings arising from the accident as he had not been able to drive the tipper lorry as a result of his injuries referred to above. There is no dispute as regards the fact that due to injuries arising from the accident medical experts state that he is not able to drive a tipper lorry. The plaintiff is not suing for any loss of profits of his business because, fortunately for him, since the accident, the turnover of the business has not been adversely affected but has improved quite substantially.

12. The plaintiff's evidence is that, of his three tipper lorries, he drove the newest one of them namely that with registration number HF2488. Before the accident he employed two other drivers, namely, Wong Kam Wah and Leung Yik Fai to drive respectively vehicles HB891 and HJ8741.

13. To establish his monthly earnings as a driver of lorry registration number HF2488, the plaintiff stated that lorry drivers earn 30% of the monthly turnover of business done by them driving their vehicle. He stated that at the time of the accident his lorry was able to fulfill orders worth $2,500 per day or $75,000 a month working 30 days a month. Accordingly he stated that he earned $22,500 per month in the period immediately before the accident.

14. To establish the amount of such turnover, initially, the plaintiff provided the monthly bank statements of the bank account of Kam Fai Transportation Company with the Hong Kong Bank to establish the turnover of his business for the year from 1st March 1997 to 27th February 1998 at HK$2,771,911.40, and for the year 1st March 1998 to 28th February 1999 at HK$2,347,803.88, and for the year from 1st March 1999 to 29th February 2000 at HK$2,729717.02, and for the year 1st March 2000 to 28th February 2001 at HK$5,810,517.17. Such turnover is made up of all the deposits into the Bank account within the aforesaid periods. For the last year, between 1st March 2000 to 28th February 2001 the plaintiff stated that his business improved to such an extent that he could not handle it by operating 3 lorries and he had to hire street lorries to do the additional orders. No books of account or year-end accounts of Kam Fai Transportation Company was available. No tax returns nor assessment of income tax was produced to establish the plaintiff's earnings. At a late stage of the hearing, the defendant's Counsel produced certain records of monthly turnover of business from the operation of the tipper lorry HF2488 for the year 1998. This had been discovered by the plaintiff's solicitors but was not included in the Bundle in respect of vehicle HF2488.

15. The defendant's Counsel sought to challenge the plaintiff's evidence of his monthly earnings as a tipper lorry driver by reference to the cheque book stubs which show payments to various drivers employed by the plaintiff whose salary was also computed at 30% of earnings from orders completed by them. Leung Yik Fai was a driver who had taken over from the plaintiff in driving lorry registration number HF2488 since the date of the accident. From payments made to him recorded in cheque book stubs of Kam Fai Transportation Company, the defendant's solicitors came to an average monthly earning of $12,885.94 for him over a 16 months period from January 1999 to July 2001. Another driver Ho Ki Wai who drove HJ8741 was paid the average sum of $11,320.80 per month by cheque (from the record of the cheque stubs provided) for the period from March 1999 to August 1999. Li Wai Hung was paid a monthly average of $12,053.20 per month by cheque (from the record of the cheque book stubs) in respect of 10 months salary over a period from 2 August 1999 to 25 June 2001.

16. In response, the plaintiff stated under cross-examination that because of the nature of the work, he had to give each lorry driver a cash vote for payment of tunnel fees and other expenses and such cash vote would be topped up from time to time. He stated that cash not expended would go towards payment of the driver's salary. He stated that it was the practice for lorry drivers to be paid partly by cheque and partly by cash.

17. The defendant's Counsel further submitted that there is no evidence of actual payment of salary of a regular sum at regular intervals to the plaintiff from the bank statements of Kam Fai Transportation Company. Counsel submitted that the plaintiff made drawings from the profit of his business as a proprietor of the business, not salary.

18. Another argument brought forward by the defendant's Counsel related to the actual amount of MPF contributions made by Kam Fai Transportation Company for its 3 drivers Kwok Kwok Ho Roland, Lee Wai Hung Louie, Leung Yik Fai. The Remittance Statement completed by the plaintiff on behalf of Kam Fai Transportation Company to Manulife Provident Funds stated that each of their income was $10,000 p.m. However the contents of such forms had not been put to the plaintiff in cross-examination. As the plaintiff did not have a chance to address this, I disregard this, as reference to this was raised for the first time in Final Submission.

19. As referred to earlier, in the course of cross-examination of the plaintiff, defendant's counsel produced to the court the monthly record of the business turnover of one of the vehicles of Kam Fai Transportation Company for the year of 1998 discovered by the plaintiff. This business turnover record was stated by the plaintiff to be that related to lorry HF2488. The records seem authentic on its face. I do not doubt the evidence of the plaintiff that it relates to the vehicle HF2488. From such records over the 12 months of 1998, the average monthly business turnover was $23,300.

20. I accept the evidence of the plaintiff that a tipper lorry driver's monthly salary is calculated at 30% of the turnover of business done by that driver driving the lorry for the month in question. I further accept that it is business practice to give each lorry driver a cash vote in respect of day-to-day expenses for tunnel expenses and for petrol etc. Hence a driver would be paid his monthly salary partly by cash and partly by retention of the balance of his cash vote. The tipper lorries are 24 tonnage weight crane-equipped. Driving such is hence not the same as driving a van or a private vehicle. It is strenuous work. Therefore it does not seem to me reasonable to suggest that such drivers should be paid a monthly salary of around $12,000 p.m. for such work, having regard to the many work orders a driver does each day. The fact that there must be a large number of job orders undertaken by the drivers can be seen from the deposits into the bank account of Kam Fai Transportation Company. I am of the view that the evidence of the plaintiff on his monthly salary for the year of 1998 is truthful.

21. I am further convinced of the truth of the plaintiff's evidence that he himself drove the lorry HF2488 before the date of the accident. I accept his evidence that as it is his own business he would drive one of the vehicles to earn the salary of the driver of such a vehicle so that his net profits would be increased. Otherwise his outlay for the business would increase and his net profit would diminish. I also accept as reasonable his evidence that he would seek to minimize payments to other drivers by seeking to take on the most lucrative orders. Further that he would drive the newest tipper lorry which is HF 2488 rather than allow an employed driver to drive it.

22. There is no evidence that the turnover of the business for driving the lorry for the year from 1st March 1999 to 29th February 2000 would be more than that for the earlier year nor that the turnover for the period 1st March 2000 to 24th September 2001 would again increase. The only evidence that is adduced is the income deposits into the bank account of Kam Fai Transportation Company. Such income could have been entirely boosted by additional business taken over by street vehicles. Hence I would allow an average monthly income of $23,300 for the pre-assessment period.

23. The defendant's Counsel referred to paragraph 11 of the witness statement of the plaintiff where the plaintiff referred to his involvement in taking care of the administrative and public relations side of the business since the date of the accident. There the plaintiff stated that "his injuries made it very difficult to provide on the spot liaison with the customers. In order to mitigate the loss of customers, he had to be in more frequent contact with customers through other means and at times, he had to ask his wife to drive him to the site." The plaintiff's Counsel submitted that as the plaintiff was no longer able to drive a tipper lorry, he could concentrate his energy in this side of the business. From the increased turnover of the business for the period from February 2000 to July 2001, the defendant's Counsel argued that it must have been from the efforts put in by the plaintiff to promote his business as referred to aforesaid and also through being able to spend much more time in the administrative and public relations side of his business. Hence, defendant's Counsel sought to deduct from the loss of earnings of the plaintiff the earnings of a clerical worker spending time to promote the administrative side of the business and the liaison with clients. The reasoning is that even if the plaintiff could no longer work as a tipper lorry driver he could work for his company in the capacity referred to as administrative and clerical work and public relations. Defence Counsel referred to the salary of clerical and secretarial workers in Transport Services contained in the statistics compiled by the Census and Statistics Department in their quarterly reports of March 2001 and December 2000 as a basis of the valuation of the personal service provided by the plaintiff to his business for which he should be paid by his business. Clerical and secretarial workers in the Transport Services were paid $10,802 p.m. as at December 2000 and $10,607 p.m. as at March 2001. I am asked to deduct such from the monthly earnings loss of the plaintiff as a tipper lorry driver as he could have been paid such a salary by his business in lieu of the employment of such a worker. Evidence that he did such work is referred to aforesaid.

24. I accept the submission of the defendant's Counsel that there would seem to be basis for the contention that the plaintiff must have been doing additional administrative work for the promotion of his business for the increase in the turnover of the business for the last 1.5 years is phenomenal. There has to be additional administrative work to take on additional orders to be carried out by the hiring of street vehicles. Although he stated that his wife helped in this, I am convinced that the plaintiff must have put in work to bring about this result. Hence I am of the view that he is entitled to claim the earnings from the business for the monthly salary of such a staff in lieu of the employment of such staff. However, there is no evidence that the plaintiff worked full-time in this work. To be fair to the plaintiff I will assess such work as part-time work at half of the medium salary of a clerical a secretarial worker as at December 2000 and at March 2001 namely half of ($10,802 +$10,607)/2 = $5,352.00. I am of the view that such earnings would start from 1st May 2000 when the monthly deposit into the bank account seemed to nearly triple. As this would be evidence to suggest that such work was put in by the plaintiff from 1st May 2000.

Pre-Assessment Loss of Earnings from the Business

1) Full loss period (from 2nd February 1999 to 30 April 2000)
$23,300 x 15 months = $349,500

2) Partial loss period (1st May 2000 - 24th Sept.2001)
$23,300 - $5,352 X 16.80 months = $301,526.40

3) The total sum of pre-assessment loss of earnings as a driver is $651,026.40.

Post Assessment loss of earnings from the Business

25. I am of the view that a multiplier of 13 is reasonable as the plaintiff is aged 38 at date of assessment. I do not accept that the plaintiff would not continue to work as a driver until aged 60. There is no documentary evidence of the earnings of a driver of Kam Fai Transportation Company for the years 1999, 2000 or for any of the months of 2001. I adopt the figure of $23,300 as the monthly salary for computation of future earnings.

$23,300 - $5,352 x 12 x 13 = $2,799,888

Loss of Earnings of a Fung Shui Master

26. There is simply no documentary evidence to substantiate the claim that the plaintiff used to earn $15,000 p.m. before the date of the accident in this occupation. According to the plaintiff, such work is dependant on recommendation from customers and there is no certainty of supply of such clientele. Nor was the plaintiff able to produce any record of such business or clientele. The plaintiff stated that he was paid in the nature of gratuitous payments by means of red packets. Hence there is no evidential basis for quantifying a claim for loss of earnings at $15,000 p.m. apart from bare assertion of the plaintiff from memory. I will adopt the defendant's Counsel's proposal to award a lump sum of $50,000 for this head.

Increased Cost of Operation

27. The plaintiff states that the tipper lorry JB891 owned by him was seriously damaged in the accident and had to be off the road for 2.5 months. He had to sub-contract the orders received for this lorry to a sub-contractor at $2,500 per day. As a result of this he lost his profit on his orders for that lorry for that period. His net profit is derived after deducting the operation costs of running the lorry at $15,000 per month and the salary of a driver. The usual salary of a driver is 30% of the monthly turnover. On the basis that on average the lorry would receive orders for 26.5 days a month, I assess the increased cost of operation or alternatively the loss of profit of the plaintiff's business for this period to be:

$2.500 x 26.5 x 2.5 months - ([$15,000 X 2.5] + 30% x [$2,500 x 26.5 x 2.5]) = $78,438.50

Other Special Damages

28. They are agreed at $45,000.

Interest

29. The defendant's Counsel contend that there should be a reduction of the interest bearing period on account of the plaintiff's delay in these proceedings. I am not inclined to do so having regard to the fact that the accident took place in February 1999. I award interest as claimed.

30. Damages are quantified at:

PSLA	$650,000.00
Pre-Assessment loss of earnings from the business	$651,026.40
Post-Assessment loss of earnings from the business	$2,799,888.00
Loss of earnings as a Fung Shui Master	$50,000.00
Increased cost of operation	$78,438.50
Agreed Special Damages	$45,000.00
	$4,274,352.90

31. Accordingly there will be final judgment for the plaintiff against both defendants in the sum of $4,274,352.90 together with interest at 2% p.a. on general damages for pain suffering and loss of amenities from date of writ until judgment and interest at half judgment rate for pre-trial loss of earnings and special damages from date of accident until date of judgment together with an order nisi for costs in favour of the plaintiff to be paid by the defendant to be taxed if not agreed with Certificate for Counsel.