Ho For Sang v. Lau Sun Choi & another

HCPI 584/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 584 OF 2001

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ASSESSMENT OF DAMAGES

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Introduction

1. In the present action, the Plaintiff claims against the 1st Defendant, the driver of the forklift truck, which ran over the Plaintiff's feet and the 2nd Defendant, the employer of the 1st Defendant. The accident took place while he was working as a carpark attendant at Tung Lung Industrial Building on 26th September 1991. As a result of the accident, the Plaintiff suffered feet injury. On 23rd September 1994, 3 days before the expiry of the limitation period, the Plaintiff issued the Writ indorsed with the Statement of Claim.

2. Default judgment against the 1st Defendant was entered on 26th January 1995 for failure of giving Notice of Intention to defend with damages to be assessed.

3. The claim against the 2nd Defendant is more problematic. When the Writ was issued, the Plaintiff's former solicitors were not able to serve on the 2nd Defendant, as the address of the 2nd Defendant was unknown. After an unsuccessful application for substituted service, the Plaintiff's former solicitors only purportedly amended the Writ on 4th July 1996 after the validity of the Writ had expired by inserting the 2nd Defendant's address thereon. However in amending the Writ, the former solicitors did not seek leave of the court. The service of the purportedly amended Writ seemed to be successful as there filed with the court a Memorandum of Notification dated 29th July 1996 of the 2nd Defendant's application for Legal Aid. The 2nd Defendant's application for Legal Aid was refused in September 1996 and no Notice of Intention to defend was filed by the 2nd Defendant.

4. From then onwards, the claim seemed to have gone into sleep and the Plaintiff's former solicitors only made an application to enter default judgment against the 2nd Defendant on 16th July 1998. Not surprisingly, the application to enter judgment was refused.

5. In the circumstances, the 2nd Defendant had never become a party to this action. The assessment hearing is therefore only in respect of the default judgment against the 1st Defendant.

6. At the hearing, the 1st Defendant was absent. I was satisfied that the 1st Defendant had been given due notice of the hearing for the Assessment of Damages and I therefore proceeded with the hearing in his absence.

Evidence

7. At the assessment hearing, Counsel for the Plaintiff, Miss Lee, called the Plaintiff to give evidence. I admitted the Plaintiff's witness statement dated 9th January 2002 as evidence-in-chief. Pursuant to an order of Master Wee dated 11th October 2002, the medical reports respectively dated 1st December 1993 and 28th February 2000 of the two Orthopaedic Surgeons, Dr. Daniel Wu and Dr. Chun Siu Yeung, were admitted by me as evidence. I had the benefit of hearing the Plaintiff giving evidence and considering the evidence of Dr. Wu and Dr. Chun contained in their reports. After having carefully observed the Plaintiff giving evidence in open court and considered the evidence of Dr. Wu and Dr. Chun, I accept their evidence.

Injuries, treatments and disabilities

8. According to the Plaintiff's evidence, which I accept, the Plaintiff after the accident was unconscious and admitted to Princess Margaret Hospital. He suffered dislocation of the left second, third and fourth distal interphalangael joints of the toes with compound fracture of the left fifth metatarsal bones and fracture of the right second metatarsal bones. On the date of admission into hospital, he underwent surgery and skin grafting. On 18th October 1991, the Plaintiff was transferred to Caritas Medical Centre for rehabilitation and stayed there until 21st November 1991.

9. The Plaintiff further told me that upon discharge home, he had to continue using crutches for about a year and had received follow up treatment for about 20 times and sought treatment with a Chinese bonesetter for about 15 occasions. At the hearing, the Plaintiff told me that he still had ache and numbness on both feet and was not able to stand or walk for longer than 30 minutes. He said that since the accident he had not worked as he still suffered from these disabilities. I further observed at the hearing that the Plaintiff still had to rely on a stick to walk and that he walked with a limp dragging more heavily on his left foot, as his toes on the left foot were not able to touch the ground after the accident.

10. Dr. Wu examined the Plaintiff on 29th November 1993 and advised me in his report that the Plaintiff sustained a crushing injury of his feet causing abnormalities to the bony and soft tissue structure of his forefeet. Mr. Wu was of the opinion that the Plaintiff suffered 15 percent physical disability and 30 percent loss of the earning capacity.

11. On 28th February 2000, Dr. Chun examined the Plaintiff. From the more updated medical report, it seems to me that the Plaintiff's condition has not significantly improved even though no further treatments are required. The Plaintiff still suffers from stiffness of both feet and the disabilities are permanent. His opinion on the Plaintiff's physical disability and the loss of earning capacity is the same as that of Dr. Wu's.

12. After having carefully considered both Dr. Wu's and Dr. Chun's opinion, I accept their opinion.

Damages

13. Having found the facts above, I now come to deal with the various heads of damages claimed by the Plaintiff

Pain, Suffering and Loss of Amenities

14. In support of the Plaintiff's claim for damages under this head, Miss Lee refers to me a number of authorities including Chan Chi Shing v Tsang Fook Metal Engineering (1999) HKEC837, Poon On Lan v Chan Shu Choi (HCA No. 6764 of 1981), judgment of Master Hansen dated 19th July 1984, Law Sai Leung v Ho Chai Man & Anr. (HCA No. 8498 of 1983), judgment of Hunter, J dated 6th February 1985, To Ying Wa v Cargo Land (Warehouse) Development Ltd. (HCPI No. 441 of 2002), judgment of Master de Souza dated 22nd January 2001 and submits that the injuries of the Plaintiff fall within the "serious injury" category, entitling the Plaintiff an award of $460,000.

15. After having considered the injuries of the Plaintiff and the cases cited by Miss Lee above, I agree with her submission and find that the Plaintiff's injuries come within the category of "serious injury", attracting an award in the region of $460,000. However, in view of the fact that the Plaintiff only claims a sum of $450,000 under this head in his Amended Revised Statement of Damages and the 1st Defendant did not attend the hearing on the basis of this claim, I would therefore only allow $450,000 under this head.

Loss of Pre-trial Earnings

16. I accept that the Plaintiff was born in 1939 and was aged 52 at the time of the accident. He is now aged 63. At the time of the accident his basic salary was $3,300 per month with an additional allowance of $500 for working every day. After taken into calculation the Plaintiff's year-end bonus and a $150 deduction for provident fund, the Plaintiff told me that his earnings at the time of the accident were $4,145 per month. I accept this figure as his pre-accident earnings as it is borne out by the salary payments recorded in his passbook.

17. Miss Lee further submitted that since the date of accident, the Plaintiff's income would have increased by 8 percent, relying on the 51 percent inflation rate from 1991 to 2000 as reflected from the statistics supplied by Professor Zhang Junsen of the Chinese University (see Butterworths Hong Kong Personal Injury p. V vi). The Plaintiff's earnings on the date of the assessment should be $6,577, the median earnings during the per-trial period is $5,361.

18. I accept the figure of $6,577 as the Plaintiff's earnings on the date of the assessment hearing. This figure is well supported by the salaries tables in respect of the income of a watchman/guard published by the Census and Statistics Department for September 1991 and March 2002, which respectively support the Plaintiff's case for pre-accident income and the income on the date of the assessment.

19. I accept that the Plaintiff has been unable to find any suitable employment as a result of the injury. On the basis of this finding, I award $719,982($5,361 x 134.3 months) under this head of claim.

Future Loss of Earnings

20. The Plaintiff claims for total future loss of earnings on the ground that he is unlikely to find any employer who is prepared to employ him as a result of his permanent disabilities. Having observed the Plaintiff giving evidence in court and considered the medical reports, I accept it is unlikely for the Plaintiff to be able to find any employment in the future. I find the Plaintiff has suffered a total loss of future earnings.

21. The Plaintiff is now 63 and claims a multiplier of 2, relying on Lam Chiu v Poon Tai Hing & Anr. (2002) HKLRD D14, Wai Ching Fong v Leung Yau Nam & Anr. (2002) HKLRD A13, Chan Kam Sum v Ho Cheung Shing (2000) HKLRD H13, Tsui Nuem v Cheung Wai Kuen (1999) HKLRD D14, Cheung Ping v Pak Kee Transportation Co. Ltd. & Anr. (1999) HKLRD J19, Ho Ah Look v Nam Kin Scaffolding Ltd. & Anr. (1999) HKLRD F15, Lam Yen Foo v Pun Wai Hong & Anr. (1999) HKLRD 115, Liu Hung Fai v Sandvik Hongkong Ltd. & Anr. (1997) HKLRD E33, Chan Kui v Lee Fai (1997) HKJLRD D41 and The Kang On v Wong Tik Fai & Anr. (1997) HKLRD L39.

22. After having considered the authorities cited by Miss Lee, I accept that the appropriate multiplier is 2. I therefore award a sum of $157,848($6,577 x 24 months).

Loss of Provident Fund benefits

23. The Plaintiff claims for this head of loss on the ground that since he took up employment as a carpark attendant he was already making a contribution of 5 percent of his earnings towards a provident fund scheme. On the assumption that the Plaintiff's employer is making a contribution in like percentage the value of the provident fund, the Plaintiff's loss of earnings under this head would be 5 percent of the total loss of earnings.

24. The difficulty for the Plaintiff's claim in respect of this head of loss is the lack of evidence. There is no document or evidence of any form supporting the Plaintiff's claim. A provident fund scheme comes in various forms. It may be non-contributory or otherwise contributory of a contribution of various percentages by an employer. In the absence of evidence, I am not persuaded to draw an inference of any contribution by the employer in favour of the Plaintiff. No award is therefore made under this head.

Cost of Orthopaedic Shoes

25. The Plaintiff also claims future cost for 6 pairs of orthopaedic shoes at the cost of $2,000 per pair. Both Dr. Wu and Dr. Chun recommend the use of the orthopaedic shoes. I accept their recommendation and find that it is reasonable to provide the Plaintiff with these shoes at the rate of one pair every year. Having regard to the age of the Plaintiff and the Plaintiff's life expectancy with reference to the figure set out in the Hong Kong Life Tables for the year of 1991 to 2016 published by the Census and Statistics Department, which is 17.77, I accept that a multiplier of 6 is reasonable. I award a sum of $12,000 under this head.

Special Damages

26. The Plaintiff also claims a sum of $3,759 for the medical treatment he received, $1,000 for tonic food and $835 for traveling expenses in connection with his treatment. The medical expenses are borne out by receipts and the other items do not appear to be excessive, I allow the amount in full in the total sum of $5,594.

Conclusion

27. In conclusion, the awards I make in favour of the Plaintiff are as follows:

(i) Pain, suffering and loss of amenities, $450,000;

(ii) Loss of pre-trial earnings, $719,982;

(iii) Loss of future earnings, $157,848;

(iv) Cost of orthopaedic shoes, 12,000;

(v) Special damages, 5,594.

28. Despite of the unsatisfactory way this claim had proceeded, I am however prepared to award interest in favour of the Plaintiff as I have no evidence on the circumstances of the delay mentioned above. It will be unjust in my view to penalize the Plaintiff by refusing an award of interest or reducing interest in the circumstances of the case. There will be interest of 2 percent from the date of Writ (23rd September 1994) to the date of judgment (6th December 2002) on the sum of $450,000 for pain, suffering and loss of amenities. The total amount of interest under this head is $74,475 ($450,000 x 2 percent x 99.3 months).

29. As for the interest on the pre-trial losses consisting of pre-trial loss of earnings and special damages in the total sum of $725,576, there will be interest at 4.0625 percent from the date of accident to the date when the Plaintiff received the Employees' Compensation ("EC") payment in the sum of $136,367.16 on 11th November 1994. The interest for this period is $92,114 ($725,576 x 4.0625 percent x 37.5 months). The total amount up till 11th November 1994 inclusive of interest is $817,690.

30. From the sum of $817,690 there should be deducted the EC payment the Plaintiff had received in the sum of $136,367.16, leaving a balance of $681,322.84. Interest on this sum of $681,322.84 will be calculated at the same rate from 11th November 1994 to the date of judgment, which amounts to $223,275 ($681,322.84 x 4.0625 percent x 96.8 months).

31. The total award for pre-trial loss of earnings and special damages inclusive of interest is therefore in the total sum of $904,597.84.

32. The total damages awarded in respect of the Plaintiff's claim are in the total sum of $1,598,920.84.

Order

33. Final judgment against the 1st Defendant in the sum of $1,598,920.84 with interest on this judgment at judgment rate from the date of this judgment until payment.

34. Costs order nisi that the costs of the assessment be to the Plaintiff, to be taxed if not agreed, with certificate for counsel. The Plaintiff's own costs are to be taxed in accordance with the Legal Aid Regulations.