SIU WAI MAN ADA v. LEE CHI CHONG AND ANOTHER

H.C.P.I. No. 174 of 1994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 174 OF 1994

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JUDGMENT ON ASSESSMENT OF DAMAGES

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Introduction

1. In the early morning of 14 July, 1993, the Plaintiff was travelling as a passenger inside a taxi owned by the 1st Defendant and driven by the 2nd Defendant. When the 2nd Defendant tried to avoid a 6-vehicle collision in front, the said taxi lost control and crashed into the embankment along the road and eventually collided with another vehicle. The Plaintiff suffered injuries as a result.

Plaintiff's Personal Background

2. The Plaintiff was born in July, 1971 (see p. 4, Bundle of Agreed Documents). She was therefore 22 years old at the time of accident and 27 years old at the time of assessment. The Plaintiff had secondary school education.

3. At the time of the accident, the Plaintiff was working as a waitress in a restaurant serving western food. Since then and up to the date of the hearing, there were some 10 periods of unemployment lasting from 1 day to more than 8 months. In-between those periods, she has been employed in various jobs including:-

(a) a receptionist with a dental clinic for $5,000 per month for about a month and resigned because she had to stand for long hours;

(b) a part-time registered assistant nurse for $3,000 per month about half a month. This was a temporary job;

(c) a junior clerk with 2 design companies, an accountant firm, a department store and a consultant company. The monthly income from these jobs ranged from $4,500 to 5,000. She left these jobs for various reasons including the need to do outdoor work;

(d) a sales assistant for $5,000 per month for about 2 months;

(e) a temporary cashier at $250 per day for about 1 week;

(f) a waitress for $7,700 per month for 3 days;

(g) a beauty consultant in a department store for $6,500 per month for about 2 months.

Plaintiff's Injuries and Treatment

4. The Plaintiff suffered bimalleolar fracture of her left ankle. This was treated by an internal fixation operation with the use of two wires. She was hospitalized until 27 July, 1993. When she was in hospital, she underwent physiotherapy and walking exercises. After her discharge, the Plaintiff attended follow-up treatment for 7 months. She was granted sick leave until 31 March, 1994. She underwent a second operation to remove the wires in February, 1994. A further operation was later performed to remove a loose body in her ankle.

5. Dr. Arthur Chiang prepared 3 medical reports dated 25 June, 1996, 5 February, 1997 and 31 August, 1998 respectively.

6. In his report dated 25 June, 1996, Dr. Chiang outlined the Plaintiff's injuries and treatment as set out above. Further, he recorded the Plaintiff's complaints to be:-

(a) ache and tiredness in her left ankle after walking continuously for an hour;

(b) ache in the left ankle after prolonged standing for about an hour;

(c) in the evening, after prolonged standing or walking in the day time, she sometimes had swelling at the dorsum of the left foot;

(d) her left ankle felt grinding on movements.

He detected mild soft tissue swelling at the malleolar area of the left ankle and a loose body in the ankle joint. He agreed with an earlier medical report that the loose body would be the likely cause of the episodic pain. He also noted early osteoarthritic changes in the left ankle, although these were localized and mild. The permanent impairment of the whole person was assessed to be 5%.

7. In his report dated 5 February, 1997, Dr. Chiang opined that the degenerative changes of the left ankle were unlikely to be progressive.

8. The earlier findings of Dr. Chiang were in essence confirmed in the updating report dated 31 August, 1998.

9. Dr. Chiang testified and confirmed the contents of his reports. Further he said inter alia that the removal of the loose body from the ankle cured the episodic pain; however, the pain and swelling associated with prolonged stress on the ankle (for example, prolonged walking or standing) still persist. He also testified that although the Plaintiff suffered a cramp when she swam, swimming was in fact good for her and the cramp had no direct relationship with her injuries.

Credibility of Witnesses and Findings of Fact

10. Counsel for the Plaintiff called 5 witnesses, viz., Dr. Arthur Chiang, Mr. Cheng Hon Hing ("Cheng"), Ms. Chan Fong Ling ("Chan"), the Plaintiff and Madam Chan Chui Fung ("the Plaintiff's mother"). Dr. Chiang's testimony has been outlined under "Plaintiff's Injuries and Treatment" above and will not be repeated.

11. Cheng was the Personnel Manager of the restaurant which employed the Plaintiff as a waitress before her accident. The gist of his testimony was that if the Plaintiff had continued to work for the restaurant, she would most probably have been promoted to senior waitress and her monthly salary would have been $7,500 with a Chinese New Year bonus equal to one month's pay. If the Plaintiff had remained as a waitress, her monthly salary would have been about $6,900.

12. Chan was the Training and Operation Executive of the company which employed the Plaintiff as a beauty consultant. The Plaintiff worked for the company from June, 1998 to the end of August, 1998. She was dissatisfied with the Plaintiff's performance during the probation period and wished to extend it. The Plaintiff informed Chan she wanted to resign because the Plaintiff disagreed with Chan's appraisal of her performance. Another reason given was she did not like working at the store where the store managers did not allow the beauty consultants to sit at the sales counter. Chan said that if the Plaintiff had continued to work there, she would have earned about $8,000 per month.

13. The Plaintiff testified that some of her friends who worked as supervisors or senior waitresses in restaurants earned about $9,000 to $10,000 per month. She used to play basketball and go to disco to dance. After the accident, she stopped such activities (because she needed to rest after about 15 to 20 minutes). She also felt scared when she travelled in taxies.

14. When she was asked in cross-examination of her job preference, the Plaintiff said it was to be a salesgirl, a cashier or a waitress. The Plaintiff also said she could walk around at home with the help of the walking stick after discharge from the hospital. She agreed during cross-examination that since she resumed work at the end of April, 1994, she was able to move around without the need for a walking stick. In re-examination, she said she needed assistance of her mother after her discharge from hospital.

15. The Plaintiff's mother testified that before the Plaintiff's accident, she worked as a cook earning $9,000 per month. Her husband stopped working and stayed home due to sickness since about 1993. The Plaintiff's mother stopped working in July, 1993 because the Plaintiff encountered the accident and the Plaintiff's mood became bad. The Plaintiff's mood improved after about half a year. The Plaintiff's mother resumed working since about March, 1994 and she admitted that since the Plaintiff's second surgery (in February, 1994), there was no connection between the Plaintiff's injuries and her employment.

16. Subject to one aspect of the Plaintiff's testimony (set out under "Pre-Assessment Loss of Earnings"), I find the 5 witnesses to be truthful and reliable. I do not find the testimony of Chan and the Plaintiff relating to the reason for the resignation to contradict each other. The Plaintiff has complained to Chan that she did not like working at the store although she did not specifically state that it was to do with her ankle problem. I find that the Plaintiff's mother stopped work from July, 1993 to February, 1994 because she needed to assist the Plaintiff's daily needs (both physical and emotional). I also accept as facts the income and periods of unemployment set out in the Plaintiff's "Employment History" (exhibit "P1").

Pain and Suffering and Loss of Amenities

17. Mr. Sakhrani referred me to Chiu Tak Sang v. Kwan Hon Lam (1996) H.K.L.D. L50. The plaintiff in the Chiu case suffered a compound dislocation of the right subtalar joint. About 3 years after the accident, he was diagnosed to have suffered quite advanced post-traumatic osteo-arthritis with the joint cartilage being worn to such an extent that it was almost bone rubbing bone. Medical opinion was that the pain he suffered when walking or lifting heavy objects would get continually worse and that within 5 years he would opt for a fusion operation which would free him of pain but also restrict his mobility. The learned Master placed the plaintiff within the middle of the "serious injury" category (as defined in the Lee Ting Lam case). An award of $470,000 was made in November, 1996 (a today's equivalent of about $564,000).

18. Mr. Sakhrani submitted that the Plaintiff in this case also suffered from post-accident depression (as the Plaintiff testified) and substantial loss of amenities in not being able to play basketball and less able to enjoy disco dancing. He invited me to make an award of $450,000.

19. On the other hand, Mr. Liu for the Defendants referred me to the following cases:-

(a) Lobo, Helena George v. Bhagwandas K. Kripalani, P.I. No. 1286 of 1996 (Judgment dated 23 January, 1998);

(b) Lau Man-nin v. Man Hau Tak, P.I. No. 1183 of 1995 (Judgment dated 15 April, 1997).

20. In the Lobo case, the injuries were the cutting of the Achilles tendon of the left ankle by a glass panel. The severed tendon was repaired leaving some permanent scarring at the injury site. There was also wasting in the left calf muscle and continuing pain the left ankle on climbing steps. The plaintiff also found getting up from a squatting position difficult. An award of $150,000 was made. The plaintiff in the Lau Man-nin case suffered face laceration and a Pott's fracture of his left ankle. It was repaired with open reduction and internal fixation. He was discharged from hospital 2 weeks after the accident and granted sick leave for 6 months in total. He attended regular physiotherapy during sick leave. A plate with 7 screws was fitted and removed 2 years after the accident which resulted in his staying in hospital for another month. His physical activity level was reduced resulting in significant weight gain and he might have difficulty in meeting the fitness requirements of his work as an ambulanceman. $291,500 was awarded (today's value of about $320,000).

21. Mr. Liu submitted that the award to be made to the Plaintiff should be in the range of $250,000 to $300,000.

22. Having considered the cases referred to by counsel and the extent of the injuries and the aftermath suffered by the Plaintiff in this case, I consider that the appropriate award should be closer to (but not the same as) that proposed by Mr. Sakhrani than those proposed by Mr. Liu. The appropriate award should be $400,000 under this head.

Pre-Assessment Loss of Earnings

23. The total amount of pre-assessment earnings for the period from March, 1994 to the date of hearing was $250,388.47.

24. The Plaintiff testified that she would not have remained at the same restaurant because the salary structure had been changed (to fixed monthly salary). I do not accept this part of her testimony. First, the Plaintiff testified that she liked, among other jobs, to be a waitress. Secondly, she agreed that her friends in similar jobs were earning about $9,000 to 10,000 per month. This would have been about the same as the salary she would have been earning if she had remained in that job. Thirdly, in view of the prevailing economic climate, it would have been unreasonable for the Plaintiff to refuse to work at such monthly salary. If the Plaintiff had stayed at the same restaurant, I find that she would have been promoted to be a senior waitress.

25. According to Cheng's testimony, her present income would have been $7,500 per month, plus one-month's wages for Chinese New Year bonus, and 2 meals per day worth $60 in total. The present day average monthly income would have been $9,805 (($7,500 x 13) + ($60 x 28 x12) ÷ 12). I accept Mr. Sakhrani's calculation that the Plaintiff's pre-accident average monthly income was $8,227. The median income would therefore be $9,016 ((8,227 + 9,805) ÷ 2). The pre-assessment loss of income would be:-

(a)

The Plaintiff's aggregate median income during the period:

$ 568,008 (9,016 x 63)

Less

(b)

The Plaintiff's actual income during the period: LOSS:

$ 250,388.47 $ 317,619.53 ============

Loss of Earnings of the Plaintiff's Mother

26. Mr. Liu accepted the Plaintiff's mother was a truthful and reliable witness. However, he submitted that it was unreasonable for the Plaintiff to claim for her mother's loss of income after September, 1993. He contended that the Plaintiff's testimony was that she was physically able to take care of herself since that time and she was only suffering from mental distress since then. I do not agree and accept the Plaintiff's testimony that she still required her mother's help with daily chores. In any event, even if her only problem after September, 1993 was her mental distress, I consider that in the circumstances it was reasonable for the Plaintiff's mother to resign and stay at home to look after the Plaintiff. I consider the reasonable period for her to do so was from July, 1993 to February, 1994. The award under this head of claim is therefore $72,000 ($9,000 x 8 months).

Loss of Future Earnings

27. Mr. Sakhrani referred me to the following cases and submitted that the appropriate multiplier is 17:-

(a) Ip Koon Ling v. Cheung Chin Keung (1977) 7 H.K.L.J. 145;

(b) Lau Ping v. Leung Choi-ying (1977) 7 H.K.L.J. 390;

(c) Chan Wai-ho v. Chow Lin Wah (1977) 7 H.K.L.J. 394;

(d) Ng Shui-on v. Wong Tsuing Ming (1985) H.K.L.J. 416;

(e) Lai Hing Wan v. K.C.R. Corp. (1988) H.K.L.J. 512;

(f) Chau Chak-hung v. Lok Kwok-sum (1990) H.K.L.J. 252.

28. Mr. Liu submitted the appropriate multiplier should be 14 to 15 and relied on the following cases in support:-

(a) Lai Tim-fai Jacky v. Lee Yuk-ping P.I. No. 762 of 1996; (1997) H.K.L.J. 262, 266;

(b) Cheng Sam Pak v. A-G for HK P.I. No. 1184 of 1996; H.K.L.R.D. Dec., 1997, 110-11 and K60;

(c) Chan Pui-ki v. Leung On [1996] 2 H.K.LR. 401;

(d) Tin Wai Shing v. Tam Foon Ling t/a the World Refrigeration (HK) Co. H.C.A. No. A6551 of 1986; (1993) H.K.L.J. 471-2.

29. Having considered these submissions, I agree with Mr. Liu and adopt a multiplier of 15 for this Plaintiff.

30. The multiplicand should be ascertained by reference to the following figures. The Plaintiff earned $7,500 per month (basic salary and commission) from her last employment as a beauty consultant. If she had stayed in her pre-accident job at the restaurant, she would have been a senior waitress by now, earning $9,805 per month. The difference is therefore $2,305 ($9,805 - 7,500). The future loss of earnings is:-

$2,305 x 15 x 12 = $414,900.

Loss of Earning Capacity

31. Mr. Liu submitted that if an award for loss of future earnings has been made, as a matter of law no award for loss of earning capacity should be made. He relied on the following cases for this submission:-

(a) Kemp & Kemp: The Quantum of Damages (1997) Vol. 1, para. 1-011;

(b) Moeliker v. A. Reyrolle & Co. Ltd. [1997] 1 All E.R. 9;

(c) Sung Fuk-wah v. Lam Wai-leuk, H.C.A. No. A3676 of 1994; (1995) H.K.L.J. 419;

(d) Mak Yiu-keung v. Ho Cheung-kat H.C.A. No. A2413 of 1991; (1995) H.K.L.J. 420.

32. I do not agree with Mr. Liu's submissions. An award for loss of future earnings is to compensate a plaintiff for the difference between the reduced income (because of his disability caused by the accident) compared to the income he would have earned if he was not so disabled. An award for loss of earning capacity (or for "handicap in the labour market" as it is sometimes called) is to compensate him "if he ever lost his current employment he would have difficulty obtaining employment at all or he would only be able to obtain less well-paid employment. 'Employers must consider their own interests, and, as the time comes when anyone has to be stood off, as the expression is, quite obviously they do not stand off the man who is most capable of doing the work?they naturally stand off the man least capable and the man who has been incapacitated to a certain extent.'. Somervell L.J. dealt with this topic in much the same language in Deakin v. Sankey [1951 C.A. 21] ...": Kemp & Kemp (referred to by Mr. Liu). I therefore do not see any overlap between the 2 awards. Hence, it cannot be correct, as Mr. Liu contended, that as a matter of law when an award has been made for loss of future earnings, no award can or should be made for loss of earning capacity.

33. The Moeliker case is distinguishable on its facts. In that case, the defendants were still employing the plaintiff at the time of trial. His future employment was practically "guaranteed" taking into the account the past history of the defendants' business and the plaintiff's employment with them. Defence counsel persuaded the Court of Appeal on those facts that the court should only make an award for loss of earning capacity if there is a substantial or real, and not merely fanciful, risk that the plaintiff will lose his present employment at some time before the estimated end of his working life. It is to be noted that the Moeliker case was further explained in Robson v. Liverpool City Council (1993) P.I.Q.R. Q78 but I do not think it necessary to expand on that for the purpose of this Judgment.

34. Mr. Liu submitted that if I should decide to make an award under this head of claim, it should not be more than a sum equal to 6 to 7 months of the Plaintiff's wages. On the other hand, Plaintiff counsel submitted that the Plaintiff still has a working life of about 38 years (assuming a retirement age of 65). An award under this head of claim should therefore not be less than a sum equal to 20 to 21 months' wages. I agree with the Plaintiff's submissions. Using a multiplicand of $9,805, the award is $196,100 ($9,805 X 20).

Agreed Items of Special Damage

35. The parties agreed that the following sums are to be awarded in the Plaintiff's favour:-

(a) hospital and medical expenses	$ 71,361
(b) nourishing food	14,000
(c) travelling expenses	6,296
(d) walking stick	650
(e) aerobic bicycle for exercise as advised	960
The total agreed amount is:	$ 93,267. ========

Deduction

36. Subsequent to the hearing, the parties informed me by letters dated 19 October, 1998 that the Plaintiff had received a total of $80,000 by way of interim payment. It was further agreed that this amount should be deducted from the sums awarded to the Plaintiff. This sum of $80,000 should therefore be deducted from the overall award.

Interest

37. It was agreed that there should be interest on the sums awarded at the following rates:-

(a) interest on the award for "Pain and Suffering and Loss of Amenities" at 2% per annum from the date of Writ;

(b) interest on the awards for "Pre-Assessment Loss of Earnings", "Loss of Earnings of the Plaintiff's Mother" and "Agreed Items of Special Damages" at 6.45% per annum from the date of accident.

Costs

38. The parties agreed that a costs order nisi should be made pursuant to Ord. 42 r. 5A(6). There is no apparent reason why costs should not follow the event. The costs of the Assessment should therefore be paid by the Defendants to the Plaintiff to be taxed if not agreed.