LAM KWONG TING v. HO YAU YUEN AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On 5th April, 1988, at about 8:20 a.m. the Plaintiff was travelling as a pillion passenger on a motorcycle driven by his friend along Clear Water Bay Road. The 1st Defendant who was driving a goads vehicle owned by the 2nd Defendant collided with the said motorcycle which then fell onto the ground. As a result, the Plaintiff suffered serious injuries and now sues the Defendants. Liability was admitted and consent judgment was entered against the Defendants for damages to be assessed.

2. The Plaintiff was 23 at the time of accident. He was then a trained and qualified carpenter. His injuries and conditions can be set out as follows.

3. Injuries resulting from the accident

4. He suffered multiple lacerations and abrasions over both knees. He had a compound fracture of the left ankle. There was a loss of skin of about 4 cm in diameter and the lower end of the left tibia and ankle joint were exposed.

5. Hospitalisation and treatment

6. He was admitted to the United Christian Hospital and had debridement and suturing of the wound performed on the same day. Plaster of Paris was applied. Three days later, there was open reduction and internal fixation of the ankle fracture using a plate and K-wire. Further debridement and skin grafting was carried out on 22nd April, 1988. Removal of the transfixing screw was done on 29th May, 1988. He stayed in hospital for exactly 2 months and was discharged on 4th June, 1988. Upon discharge, he had to walk with the aid of 2 crutches for nearly 2 months. There was physiotherapy follow-up. He was given sick leave until 17th October, 1988.

7. Unfortunately, recovery of the ankle injury was not satisfactory. He still had persistent pain and stiffness. Upon further examination, it was discovered that the medial malleolus had gone into non-union and the ankle joint was complicated by post traumatic arthritis. Ankle joint fusion was subsequently carried out on 24th August, 1989 in St. Theresa's Hospital where he stayed for about 20 days. Upon discharge, his ankle was in plaster. He was confined to the wheelchair and on crutches for about 2 months.

8. Disabilities

9. According to the medical evidence, his disabilities are as follows:

(i)             He now has scars at the medial aspect of the ankle joint (about 3 x 5 cm), the lateral aspect of the left leg (about 14 cm), the donor site of the left thigh (about 8 x 5 cm) and some minor scars at the right knee.

(ii)             He now has no dossiflexion or plantar flexion in his left foot and the subtalar joint movement is reduced by 20%. Inversion is reduced by 30% with pain at the extremes and eversion is reduced by 30%, also with pain at the extremes. There is a slight muscle loss at the left calf. He has been assessed to have a 30% impairment of the left leg which is a 12% impairment of the whole man. There is a chance of osteoarthritis and this will increase the disability to 15% in about 20 years time.

(iii)             The skin over the right knee is 30% less efficient with scarring and keloid formation. This produces an impairment of 10% to that area which is a 2% impairment of the whole man.

(iv)             As to his general activities, he has difficulty in squatting. He experiences pain at the ankle after a long walk. If he gets up and starts to walk after having sat down for a long time, he will have a limp. He used to play football but is no longer able to do so.

10. Prospect of a future operation

11. Dr. O'Donovan who was called for the Plaintiff is of the opinion that the Plaintiff would need anti-arthritis pain relief medication as the years go by and that the Plaintiff may require a further operation for the fusion of his subtalar joint. He says that the likelihood of this is 40% in 20 years and that this is a reasonable estimate. The further operation will reduce the pain but increase the disability. This is because if the subtalar joint is fused, he will not he able to move his foot up and down and hence is more likely to trip over when mounting or taking the steps.

12. Dr. O'Donovan's evidence was challenged on a number of aspects. First, it was suggested by Counsel for the Defendants that the Plaintiff's keloid formation on the right knee leading to an estimated disability of 2% might be due to a pre-existing tendency in the Plaintiff of developing keloid. This was put at rest by the doctor who pointed out that although the Plaintiff had a previous knee injury, it had healed completely and that there was no medical evidence of a keloid developing tendency. On the evidence before me, I accept Dr. O'Donovan's explanation. Second, it was put to the doctor that his estimate of the Plaintiff 's permanent disabilities was too subjective and not made in accordance with the usual criteria. Dr. O'Donovan replied that his assessment was based on his experience and a consideration of the Plaintiff's medical conditions and a number of matters including his age and social background. In the light of the Plaintiff's conditions and the medical reports, I think Dr. O'Donovan's estimate is reasonable and I would accept it as accurate.

13. Third, it was also disputed by the Defendants that the Plaintiff did not really need a further operation. This arises from Dr. O'Donovan's opinion that there is a likelihood of 40% that the Plaintiff may require a fusion of the subtalar joint in future. According to the Plaintiff`, the costs of a further operation are $25,000, but the Defendants object to this being recoverable as a separate item. In the event the Court rules that this item is recoverable, the Defendants do not challenge the amount. It is not always easy to assess the requirement of a future operation in terms of a percentage. I have not been referred to any particular authority directly on this point save that Counsel for the Plaintiff had cited a case regarding the burden and standard of proof generally. From the previous cases where the costs of a future operation were awarded as a separate item (as opposed to being a factor for consideration in making an award for general damages), it appears that the Court will have to be satisfied with a number of matters. It must usually be shown that the future operation is on medical advice and is necessary or reasonably required for the purpose of recovery or improvement of the injuries sustained or the relief of persistent pain and suffering. The Plaintiff should also show that the future operation is anticipated or likely to take place in the near or reasonably foreseeable furture. Further, the expenses to be incurred must also be reasonable. Clearly, the burden is on the Plaintiff to show that an award under this head and for the amount claimed should be granted. Even if the Plaintiff  fails to do so, the possibility of a future operation will no doubt be taken into account when the Court is considering the award for pain, suffering and loss of amenities.

14. In the present case, if I understand him correctly, Dr. O'Donovan seems to be saying that there is a 40% likelihood that at a certain stage in future, the Plaintiff may require fusion of the subtalar joint so as to relieve pain. However, the doctor adds, as a result of the operation, there may well be some further limitation of the ankle movement. It is not suggested when such an operation is needed. Faced with such evidence, I am not satisfied that a separate award for the costs of a future operation should be made in this case.

Pain, suffering and loss of amenities

15. Counsel for the plaintiff submitted that the Plaintiff's injuries should fall within the middle range of the serious injuries category as stated in Lee Ting Lam v. Leung Kam Ming [1980] HKLR 657. In personal injuries cases, there is always the temptation to go straight to the categories instead of first comparing the injuries with those in similar cases as was pointed out by Cons VP in Lau Che Ping v. Hoi Kong Ironwares Godown Co. Ltd. [1988] 2 HKLR 650. In making such a comparison, I would also respectfully " adopt the approach of Master O'Donnell in Lau Hi v. Kam Shek Investment Co. Ltd. (HCA No. A5978 of 1986, 18 Nov., 1987), namely, "to make a realistic award, appropriate to the injuries suffered in the particular case, which reflects the much improved social, economic and industrial conditions in Hong Kong over recent years". I have been referred to number of cases. Of these, I do not think Kwok Hang Kei v. Quon Hin Concrete Co. Ltd. (HCA No. A6409 of 1988) and Lau Wing Shing v. Chung Fat Mechanical Works Co. (HCA No. A109 of 1986) are of very much assistance. In Chan Long Ying v. Wong Chick Chung (HCA No. A2110 of 1985), the Plaintiff there had suffered leg injuries resulting in a shortening and other disabilities of the left foot and ankle. It was a case decided in October 1985 and the award for pain, suffering and loss of amenities was $90,000. The Plaintiff in Lau Hi v. Kam Shek Investments Co. Ltd., supra, suffered a fracture of both ankles. He had similar disabilities and required a   future operation. The award under this head was $120,000. That was in November 1987. In Chui Po Hing v. Lo Suen (HCA No. A1434 of 1988), the injuries were much more serious and involved amputation of the toes. The award was $240,000 (in February 1990).

16. I think the plaintiff's injuries are less serious than those in Chui Po Hing, but more serious than those in Chan Loa Ying and Lau Hi whose awards on this item may now be about $130,000 and $150,000 respectively.  In considering the award in this case I have also borne in mind the number of operations the Plaintiff had, the period he had been hospitalised, the time he was on crutches and wheelchair, the effect the injuries had on his future social life and the possibility of a future operation. In all the circumstances of this case, I would make an award of $180,000 for pain, suffering and loss of amenities. Apart from the above considerations, when looked at in the light of the categorisations in Lee Ting Lam, supra, I spree that the present case may fall within the lower and middle range of the serious injuries category. Counsel for the Plaintiff drew my attention to the actual increase of 18% in the Consumer Price Index between July 1988 and Ray 1990. Accepting that to be the rough indication of inflation during that period, the guideline for serious injuries category as set out in Lee Ting Lam and updated in Lau Che Ping would now be about $160,000 to $212,000. My award is also consistent with the guidelines.

Loss of earnings

17. At the time of the accident, the plaintiff was a junior carpenter with one Man Lee Construction Company earning a basic wage of $200 a day with a Lunch allowance of $15, making a total of $215 per day. I accept that as a young man he would have worked 25 to 26 days a month. Counsel for the plaintiff asked me to use 25½. After his injuries, he tried to work as a garage apprentice with Sime Darby Rotor Co. in October 1988. He said he only worked there for less than a month because he had difficulty in squatting. This is consistent with the medical evidence. During the period he worked there, he had earned $2,500.  Next, he worked as an interior decorator with one Michowood for about 8 months before he had the fusion of the ankle in August, 1989. He got $220 a day and worked for 24 to 25 days a month. He was unable to return to this work after the operation as he had difficulty in climbing up and down and moving heavy objects. He is now workings a sales representative in an insurance company earning $6,000 a month including commission.

18. I accept that the plaintiff had tried very hard to resume working or find jobs for which his original training as a carpenter would be useful. His efforts had apparently not been quite successful. Evidence had Seen adduced that with his training and qualification, he would now be a full rank carpenter had he not net with the accident. There is also evidence that as such he would now be earning at least $400 per day with his previous employer, although the statistical officer of the Census & Statistics Department suggested about $412.40. The Plaintiff appears to be content with $400. I would also accept this part of the evidence as accurate.

19. The pre-trial loss of earnings would be as follows: Median wage: $(215 + 400) / 2 x 25.5 = $7,841.25 per month period in between - 2 years 3 months

Less income received

20. The Plaintiff had received formal training run by the Vocational Training Council for carpentry joinery and cabinet-making. If not for the accident, he would have continued his career as a skilled carpenter. He is now unable to do so and it is most unlikely that he can resume his previous work in future. He is working as a sales  representative for an Insurance company. Although the number of policies he can manage to sell (and hence the commission he can earn) becomes less recently, he tells me that he is confident he can continue in this job at least for some time. The multiplicand for his future loss of earnings would be the difference between what he could have earned as a full rank carpenter (i.e. $400 per day) and what he is now earning as a sales representative (i.e. $6,000 per month).

21. As to the multiplier, Counsel for the Plaintiff drew my attention to the dictum in Cookson v. Knowles [1979] A. C. 556 and Ho Chi Kin v. Chan Hoi Shing Civ. App. No. 184 of 1985 that in non-fatal cases, the multiplier should be assessed as at the date of trial. He submitted that the multiplier to be applied in this case should be 15. Counsel for the Defendants referred to Chui Po Hing, supra, and submitted that there the learned Master applied a multiplier of 6 in the case of a female who would become a tourist guide and that a tourist guide would not usually continue as such past 40 years of age. He urged me to apply the same multiplier here. With respect to Counsel, I think a tourist guide is quite different from a skilled carpenter. For the latter type of work, a person can have a much longer career and can work as such long after the age of 40. I have considered a number of non-fatal cases where the plaintiffs were of a similar age group and had similar types of work. (See Ng Shui On v. Wong Tsung Mina HCA No. 10098/82; Hong Kin Fai v. Koo Kin Chung HCA No. 12207/83; Lai Hing Wan v. KCRC, HCA No. 4338/84; Wong Nai Hing v. Great Jim Engineering Equipment Co. Ltd., HCA No. 1180/85; Lau Wing Shing v. Chung Fat Mechanical Works Co., HCA No. 109/86 and Tan Ming Kwan v. Yip Chi Ming HCA No. 4867/85). Bearing in mind the plaintiff's age, education and training in the present case, I take the view that the multiplier to he applied should he 15.

22. The future loss of earnings is calculated as follows:

23. The special damages have been agreed. They are $2,000 for tonic food, $500 for damaged clothing, $1,200 for wheelchair and crutches and $22,857 for medical expenses with a total of $26,557.

24. The total award is therefore as follows:

Pain, suffering and loss of amenities	$180,000.00
Loss of future earnings	$756,000.00
Loss of earnings	$142,093,75
Special damages	$26,557.00
	$1,104,650.75
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25. There shall be interest on general damages at 2% p.a. from the date of the writ to the date of judgment and on special damages at 5.5% p.a. from the date of accident to the date of judgment. The plaintiff is also entitled to costs to be taxed if not agreed with a Certificate for Counsel.