TO YING WA v. CARGO-LAND (WAREHOUSE) DEVELOPMENT LTD.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 441 OF 2000

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ASSESSMENT OF DAMAGES

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1. This is an assessment of damages following the entry of interlocutory judgment on 10 May 2000. This suit arises out of an accident which befell the plaintiff, Mr To Ying-wa, on 19 May 1997. Mr To, who was at all material times a lorry driver, was knocked down by the 2nd defendant, an employee, servant or agent of the 1st defendant in Kwai Chung. In the accident a forklift truck driven negligently ran over his right foot and collided with his ankle causing him fractures to his lower limb.

2. The plaintiff, currently aged 22, was born in the PRC on 18 July 1975. From his witness statement adopted by him as his evidence-in-chief which he elaborated upon in testimony, it is apparent that he has held a series of employment in different trades prior to the accident. At one stage he worked as an air-condition technician, then as an assistant in a restaurant before switching to work in a garage. At the time of the accident he was in the employment of a Mr Tsang Woon-cheung, earning an average of $17,000 per month.

3. In approaching the evidence so far adduced in this case, the court is mindful of the fact that the defence has not participated from day one and there is no evidence to contradict any of the evidence adduced by the plaintiff.

4. The plaintiff claims damages under several heads. For pain, suffering and loss of amenities, it is suggested that the fractures that he sustained to his fourth and fifth metacarpals of the right foot and the pain, suffering and disability that ensued, although temporary, should attract an award of about $200,000. It is accepted by Mr Kwok of counsel on his behalf that the quantum suggested in the plaintiff's skeleton submissions of about $300,000 may not be entirely apt. I observe that that is a most fair concession.

5. The second head of the damage claimed is loss of earnings pre-trial. I shall consider this aspect more fully in due course, but suffice it to say at this juncture that the plaintiff claims loss of income in respect of three periods post-accident and up to today's date. A sum of $154,120 is claimed under this head.

6. No claim has been made in respect of prospective loss of earnings as the plaintiff has returned to work full-time in his own business since August of last year, earning $20,000 per month. It can therefore be observed that he is earning effectively a much higher salary than what he was capable of getting at the time of the accident.

7. The third item of loss is loss of earning capacity. It has been submitted that on the evidence the court could infer that at some future time the plaintiff, because of his injuries, may be disadvantaged in the labour market. There is evidence, though perhaps scant, from Dr Lau Hoi-kuen who provided the second of the two medical reports in this case, that his injuries may result in an inability to work for many hours at a stretch. The evidence revealed that with long working hours the plaintiff, even now, has had to take a rest periodically. That condition may well be exacerbated as he gets older, necessitating time being taken off work. That, of course, will result in some potential financial loss in the future. As I have said, the evidence in this regard is somewhat thin on the ground.

8. Finally, there is a claim for special damages relating to medical and travelling expenses and tonic food. These come to $21,348.

9. There is of course also a claim for interest on damages as well as the costs of this application.

10. I turn first to the claim for damages for pain, suffering and loss of amenities.

Pain and suffering and loss of amenities

11. The medical report of Dr Leung Siu-lan revealed that the plaintiff, following the accident, was admitted to Princess Margaret Hospital where close reduction and K-wire fixation was carried out on his right fourth and fifth metacarpals. He was administered a plaster cast at the site of injury. Following discharge, he had follow-up treatment at the South Kwai Chung Outpatient Clinic. He was seen on 11 June 1997, 25 June 1997, and finally, 9 July 1997 at the outpatient clinic. His healing progress was uneventful and considered satisfactory. The plaster of Paris and the K-wire were subsequently removed and for a while he had to walk about with crutches. Sick leave was granted between 19 May 1997 and 6 August 1997. He was last followed-up according to the Hospital Authority report of Dr Leung on 9 July 1998.

12. For the purposes of these proceedings Dr Lau Hoi-kuen examined the plaintiff and produced a fairly short report of three pages. It does appear that the fractures have healed quite satisfactorily although at the time of the report there was still swelling and tenderness over the fractured sites. There was also accompanying pain in the right foot but Dr Lau opined that it could not be more than a mild sensation. He does however comment that the plaintiff may have difficulties with prolonged walking, standing and driving. He concluded that the prognosis was good and that at most only 1% permanent disability has been sustained by the plaintiff.

13. As observed by the doctor, the plaintiff has indeed returned to work as he was clearly able to do so. I am satisfied that the plaintiff has used his best endeavours to return to work as quickly as possible and has by doing so mitigated his own loss and damage.

14. Having a broken foot is not a pleasant experience and the plaintiff still complains of occasional discomfort at the site of his injury. In evidence, he has testified that from time to time on long working trips across the border he would have to take rest. I am satisfied, and this is a matter which will come into play when one considers the claim for loss of earning capacity, that as he gets older with the onset of poor, wet weather, he may well experience more discomfort. I am also satisfied on the evidence that it may well be possible that with the onset of age and inclement weather he may have to take time off from work occasionally and that may result in the occasional and intermittent loss of earnings.

15. Mr Kwok has supplied me with photocopies of several cases, none of which, he admits most frankly, are directly in point. One rarely finds two cases dealing with the same sort of injuries. It has been conceded that this is not a case which falls within the serious injury category. It clearly does not. Yee Ting-lam v Leung Kam-ming [1980] HKLR 657 is the authority on serious injury category. Since that case was handed down, many cases making reference to it have taken the approach into consideration and made upward revision to reflect inflation over time. That is not a matter with which I am concerned in this exercise.

16. Mr Kwok contends that it may fairly be said that the plaintiff's injuries fall within the description of moderate injury category. With that I am in total agreement. It is certainly not a trivial injury as the plaintiff has had to undergo surgical procedure and use crutches during his initial convalescence.

17. In So Kwok-kwong v Cheng Chi-kwong & Others, PI No. 1098 of 1997, a case involving injuries to the knee and arm where an 8% disability of the whole person with significant loss of amenities, pain, suffering and loss of amenities attracted an award of $320,000.

18. In the last case of those supplied to me by Mr Kwok, an award of $150,000 for PSLA was made. That case is Lam Pik-kuen & Lee Fai-ming & Another, HCPI 7 of 1998. The decision was handed down on 18 May 2000 and involved injury to the pelvis of a plaintiff.

19. Doing the best that I can on the evidence, I consider that the contention that PSLA in this case should attract a sum of $200,000 is not without merit. That is the sum that I shall award to the plaintiff under this head.

Loss of earnings

20. At the time of the accident, the plaintiff was a driver cum delivery worker. He was, as I have observed, earning $17,000 per month. That equated to approximately 30% of the delivery fee for each delivery he made across the border for his Hong Kong employer. Following the accident the plaintiff stayed at home to convalesce and did not resume work until August 1997 when he worked for 1 1/2 months. He did not return to driving but took up casual work in a Chinese restaurant where he earned a daily wage of $180. On a 16 day month, his average monthly income was $2,880. He could not return to driving, he said, because he was still limping as he went about his restaurant work. This I accept to be true. He resigned after 1 1/2 months.

21. As his condition improved he began to look for employment again and in September 1997 he was employed by the Tung Hing Delivery Company as a driver. He said he was able to go back to driving because by then he was able to walk normally. At the time he was driving a small truck, he said. He was earning between $13,000 and $14,000 per month. In evidence he produced a schedule of his updated employment post accident. That sets out very clearly the periods when he worked, the nature of his employment and his remuneration. I accept that evidence to correctly reflect what was happening at the time.

22. I am also satisfied that since August 2000 he has become self-employed in a partnership with a friend or friends and has been able to earn, on average, $20,000 per month.

23. Loss of earnings between the date of the accident and today's date is made up essentially of three periods. The plaintiff was unable to work and on sick leave for 2 1/2 months after the accident. His loss therefore would be, according to the written submissions of Mr Kwok which I accept, $17,000 per month x 2.5 months. That produces a loss of $42,500. There was partial loss for 1 1/2 months between August and September 1997 and that would produce a figure of $22,620. This sum is made up of a multiplicand of $17,000 and a multiplier of 1.5. Finally, there is partial loss between September 1997 and July 1999 amounting to $89,000. It is arrived at in the following manner:-

($17,000 x 22 months) - ($12,500 x 12 months) - ($13,500 x 10 months)

Past loss of earnings therefore amounts to $154,120.

Loss of earning capacity

24. I have previously commented on various aspects pertaining to this item of loss. Whether the plaintiff has, in fact, sustained a loss of earning capacity, and if so, to what extent is really a matter of inference. Mr Kwok has invited me to conclude that there is a potential for financial loss in the future despite the very minor disability that the plaintiff has. This largely turns on the fact that he would require rest from time to time and experience pain with changes in the weather. I consider that an award of $80,000 for loss of earning capacity, which has been made out, is about right. That is the amount that I award to him.

Specials

25. This head is made up of a number of items. The first is medical expenses. This covers hospitalisation and follow-up fees of $948. The second component concerns travelling expenses to and from Princess Margaret Hospital. A sum of $100 is claimed. Attending outpatient treatment by taxi on three occasions cost $300. Finally, there is a claim for tonic food of $20,000. There is no elaboration for this expenditure, but it is clear that such a claim is allowable provided it is not unreasonable. The total sum claimed is $21,348. I see no reason why this amount should not be reflected in the overall award.

26. In summary, I award damages to the plaintiff as follows:-

Pain, suffering and loss of amenities	$200,000
Past loss of earnings	$154,120
Loss of earning capacity	$ 80,000
Specials	$ 21,348
TOTAL DAMAGES:	$455,468

27. There shall be interest on the award for pain, suffering and loss of amenities at 2% p.a. from the date of the writ, that is 14 April 2000 until today. In addition, the past loss of earnings award will attract interest at 6.25% p.a. which is half judgment rate from the date of the accident until today, the date of accident being 19 May 1997. Similarly, interest at 6.25% p.a. will also have to be included on the award for special damages from 19 May 1997 until today.

28. The plaintiff shall have his costs of this assessment, taxed if not agreed, with a certificate for counsel. His own costs will be taxed in accordance with the Legal Aid regulations.