TSANG KEE CHUEN v. THE HONG KONG AND YAUMATI FERRY COMPANY LIMITED

1988 No.A303

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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ASSESSMENT OF DAMAGES

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1. On the 17th November 1986 the Plaintiff, who was 41 years of age, was, a. passenger on the HYF Motor, Vessel "Man Loy". When that vessel was berthing at the Central Harbour Pier, due to the negligence of the Defendant's employees, a spring line broke and whipped across the deck, where the Plaintiff was sitting, causing severe injuries to the left side of his face, including his left eye.

2. A writ was issued on the 13th January 1988 and interlocutory judgment was entered by consent on the 16th May 1988.

3. I propose to set out the Plaintiff's injuries in full. They were as follows:-

4. Immediately after he. was hit by the broken line the Plaintiff was rendered unconscious and taken to hospital.

5. He was in hospital for 10 days after the incident, on a liquid diet for 50 days, and on sick leave for about 3 months. Happily the Plaintiff has made a good recovery from the fractures, although the treatment for the same must have been rather unpleasant, and whilst his loss of smell was complete after the accident he says that of late this has improved.

6. Unfortunately, the injury to the left side of his face in the vicinity of his eye was beyond repair and is very disfiguring. The cheek bone in the vicinity of the eye socket appears depressed, the eyeball itself is sunken and the eyelid has dropped. The Plaintiff can only open his eyelid manually and eyeball when so revealed, is not a pleasant sight:

7. In his evidence the Plaintiff said, and I accept what he said, that he still suffers from pain in his left eye and that it weeps from time to time. The continuing problems with the eye have necessitated, and continue to so necessitate further treatment although this is of a fairly conservative nature.

8. There was some discussion during Dr. Mao's evidence as to the precise degree of impairment of the whole man. Whilst I will not go as far as saying that such discussion was of no assistance to me, the assistance I derived from the same was extremely limited. Findings on this point are clearly required in connection with claims under the Employees Compensation Ordinance, but in a claim of this nature I find it neither necessary nor desirable to make a finding as to whether the impairment of the whole min was 26% or 30%. What I have to do is to establish the injuries suffered by this particular Plaintiff and consider the effect that these injuries have had on him.

9. Given the disfiguring nature of his injuries it came as no surprise when the Plaintiff said that his social life has suffered as a result of the same. It may be that, judged by some standards his, social life was not particularly active but he enjoyed it and I accept that he is dismayed at not being able to play badminton, basketball football, and the like and upset it feeling unable to join in picnics and swimming parties.

10. Perhaps the Plaintiff's attitude to his social life, which is now minimal, is best stated in his owns words in relation to picnic outings and I quote "I do not go on picnics because I am afraid that I might be a burden to others and might worsen the atmosphere."

11. Viewed subjectively, as one must in cases of this nature, this reveals a somewhat dismal future for the Plaintiff for the loss of sight and disfigurement are both permanent.

12. Against the above background I now come to determine the appropriate award for pain, suffering and loss of amenities. Until a few days ago, the highest award. for the loss of an eye was by Master O'Donnell in Fong Pak-lam v. Chan Tai,HCA 2279/84 in which he awarded $130,00.00. Mr. So submitted that that is the figure. I should award, notwithstanding, the recent review of awards of damages in personal injury cases by the Court of Appeal in Lau Che-ping v. Hoi Kong Ironwares Godown Co. Ltd.

13. Mr. Faulkner took substantial issue with this submission and argued that not only is Lau Che-ping relevant, in general terms, but also that insufficient allowance had been given An previous awards in Hong Kong for the deleterious effects of monocular vision and that, by hypothesis, thetime has come for a significant increase in the quantum of awards in cases of this nature.

14. Mr. Faulkner cannot have known, because my assessment had not been circulated at the time of his submission, that had occasion to consider this very issue in a hearing a few days before the hearing of this assessment. In that action Pang Kwai-wah v. Tsang Kwong-wing HCA 5582/87 I awarded the Plaintiff $150,000.00 under this head. The Plaintiff in that case was a much younger man, who should be able to adjust to monocular vision more easily than the Plaintiff in the present action. Further, his injuries were limited to the eyeball alone and, because the eye socket was intact, a prosthesis could he fitted thus reducing his cosmetic disfigurement to a minimum.

15. I have already detailed the Plaintiff's injuries in this assessment. It is patently clear that they are far more serious than those suffered by Pang Kwai-wah. Hence, I assess the Plaintiff's damages under this head at $200,000.00.

Pre-trial Loss of Earnings

16. It was common ground that, as at the date of the accident, the Plaintiff was earning $5,000.00 per month as a skilled jewellery worker. He also received the usual bonus s of one month's extra pay at Chinese New Year. He was away from his work from the 17th November 1986 to the 1st April 1987.

17. Mr. Faulkner suggested that I should approach my assessment under this head of claim on an annual basis i.e. by multiplying his monthly salary by 13 and dividing by 365. With respect, I do not think this is right. I consider that I should calculate precisely what the Plaintiff would have received from his employer, but for the accident, and deduct therefrom any payments actually made by his employer.

18. During the period in question the Plaintiff would have received the following:-

He actually received from his employer:

19. In his closing submissions Mr. So made the point that there was evidence to suggest that the Plaintiff should have received $1,500.00 in sick pay. This may be so, but as Mr. Faulkner pointed out he did not receive this sum, and, in my judgment, whatever the rights and wrongs of the matter the Plaintiff is scarcely in a position to press his employer for this amount when that employer has created a job for him out of compassion for his plight.

20. Thus, in the premises, I award the Plaintiff the sum of $25.033.38c under this head.

21. Next, I will deal with the Plaintiff's claim for the lost opportunity of making $10,000.00 for training apprentices under this head of claim.

22. Briefly, the background to this claim is that when the Plaintiff was employed he was asked to undertake the training of apprentices on a 12 months trial basis and an additional fee of $10,000.00 was settled upon.

23. The precise basis upon which this additional fee was to be paid is not entirely clear from the evidence and the Plaintiff's employer only rated his performance as a teacher as being satisfactory. If the matter had ended there the Plaintiff's claim under this head probably would have failed as being too speculative. However, it did not because between the date of his employment, 1st July 1986, and the date of the accident the Plaintiff received $3,200.00 on account of this fee. Thus, on a balance of probabilities, I consider that, but for the accident, the Plaintiff would have received the full $10,000.00. Thus I award him the balance of $6,800.00. However, in making this award I wish, to make it quite clear Shat I am not sufficiently satisfied that, at the expiration of the 12 months trial period, the Plaintiff would have continued to teach apprentices and accordingly it will not be taken into account any further.

24. Finally, under this general head of claim I turn to the Plaintiff's remaining loss of` earnings from the 1st April 1987 to the date of this hearing.

25. On the 1st April 1987 the Plaintiff re commenced work as a messenger at the rate of $1,800.00 per month. In addition to his basic salary he was given lunch by his employer, a perk which he did not receive previously. It was agreed that a value of $10.00 per working day should he placed on the meals.

26. If the Plaintiff had been able to remain in his employment as a maker of jewellery it was agreed that his salary would have increased to $6,000.00 per month on the 1st April 1988, whereas in his present, more lowly, employment his income only increased to $2,000.00 per month.

27. I agree with Mr. Faulkner's calculation of the Plaintiff's further lose under this head. It is as follows:-

This is approximately $244.17 per month.

Thus for the period 1:4.87 - 31.3.88

the Plaintiff's loss was as follows:-

Future Loss of Earnings

28. I can deal quite shortly with the multiplier. I was supplied with most useful authorities by both Counsel. On the basis of those authorities Mr. Mr. So submitted that a multiplier of 9 would be appropriate. Mr. Faulkner considered this too low and submitted that the multiplier should be 13. Both submissions were in relation to post-trial multipliers.

29. I have carefully considered the authorities and the submission of Counsel. Applying the same to the circumstances of the Plaintiff, a man of 41 years, whose continued employment as a maker of jewellery would have required both good eyesight and extremely steady hands, I consider that the appropriate multiplier should be 10.

30. As to the multiplicand, it was common ground that the base figure should be $6,000.00 per month from which should be deducted $2.000.00 per month plus the value of the Plaintiff's meals. This gives an annual loss of $49,070.00.

31. Hence the award under this head is:-

$49,070 x 10, i.e. $490,700.00.

Loss of Earning Capacity

32. Mr. So submitted that, given the Plaintiff's present station in life, and the fact that, on the evidence of the Labour Officer, he could equally well undertake jobs such as a packer, cleaner, or lift operator, I should either award nothing at all under this head or alternatively only a nominal S10,000.00.

33. I am unpersuaded that that is right. In my judgment, as I set out in extenso in my assessment in Pang Kwai-wah, there is an increased risk of early, and total, blindness for a man with monocular vision which would severely curtail an unskilled man's earning capacity, quite apart from the readily identifiable difficulties a handicapped person – particularly one who is so obviously disfigured – must overcome in finding, alternative employment should his present job come to an end.

34. At the time I drafted my assessment in Pang Kwai-wah, I had not been referred to any authority for the proposition that the possibility of early, and total, blindness was a factor which should be taken into account. Mr. Faulkner has provided the same namely Paris v. Stepney B.C. [ 1951] AC 367 from which I only need quote from the judgment of Lord Normand where he said at page 383:

    "the loss of one eye might have as a sequel the destruction of the other."

35. In Pang Kwai-wah the plaintiff was a young man, in respect of whom the multiplier would have been 15 if it had had to be determined. He was also a man of some intellect, as well as possessed of manual dexterity, and in receipt of a substantially higher income than the Plaintiff in the present action. Here, I have a Plaintiff who has little education and whose only skill, prior to the accident was in the making of jewellery and in respect of whom I have determined the multiplier should be 10.

36. I consider that there should he a direct correlation between a multiplier and an award under this head. In Pang Kwai-wah I awarded $150,000.00. As a first step in my assessment under this head I discount that figure by one-third to reflect the differing multipliers. Finally, I propose to further discount the award by $45,000.00 to reflect the difference in their actual earning capacity at present. Thus I award $55,000.00 under this head.

Special Damages

37. These were agreed at $8,590.00 and accordingly I award that figure.

38. In summary therefore my award is as follows:-

39. There will be interest on the special damages at the rate of 4% per annum from the date of the accident to the date of this assessment and on general damages (save for future loss of earnings and loss of earning capacity) at the rate of 2% from the date of the writ to the date of this assessment.

40. As to costs, the Defendant shall pay the Plaintiff's costs of this assessment, which shall be taxed if not agreed, and the Plaintiff's own costs shall be taxed in accordance with Legal Aid Regulations.

41. Mr. Faulkner asked for a certificate for counsel. This was clearly an appropriate case for counsel to be instructed and both counsel were of great assistance to me. Hence, if a certificate were necessary I would grant one. However, as this assessment was in open court no such certificate is required under 0.62 R.S.C.